<DOC>
[107 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:86939.wais]
S. Hrg. 107-584, Pt. 4
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
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HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
MAY 9, MAY 23, JUNE 13, JUNE 27, AND JULY 23, 2002
__________
PART 4
__________
Serial No. J-107-23
__________
Printed for the use of the Committee on the Judiciary
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WASHINGTON : 2003
____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
C O N T E N T S
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THURSDAY, MAY 9, 2002
STATEMENTS OF COMMITTEE MEMBERS
Page
Cantwell, Hon. Maria, a U.S. Senator from the State of Washington 1
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 2
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 231
PRESENTERS
Akaka, Hon. Daniel, a U.S. Senator from the State of Hawaii
presenting Richard Clifton, Nominee to be Circuit Judge for the
Ninth Circuit.................................................. 2
Cox, Hon. Christopher, a Representative in Congress from the
State of California presenting Richard Clifton, Nominee to be
Circuit Judge for the Ninth Circuit............................ 5
Hart, Hon. Melissa, a Representative in Congress from the State
of Pennsylvania presenting Joy Flowers Conti, Nominee to be
District Judge for the Western District of Pennsylvania........ 8
Holden, Hon. Tim, a Representative in Congress from the State of
Pennsylvania presenting John E. Jones, III, Nominee to be
District Judge for the Middle District of Pennsylvania......... 7
Inouye, Hon. Daniel K., a U.S. Senator from the State of Hawaii
presenting Richard Clifton, Nominee to be Circuit Judge for the
Ninth District................................................. 69
Santorum, Hon. Rick, a U.S. Senator from the State of
Pennsylvania presenting Christopher C. Conner, Nominee to be
District Judge for the Middle District of Pennsylvania, Joy
Flowers Conti, Nominee to be District Judge for the Western
District of Pennsylvania, and John E. Jones, III, Nominee to be
District Judge for the Middle District of Pennsylvania......... 4
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania presenting Christopher C. Conner, Nominee to be
District Judge for the Middle District of Pennsylvania, Joy
Flowers Conti, Nominee to be District Judge for the Western
District of Pennsylvania, and John E. Jones, III, Nominee to be
District Judge for the Middle District of Pennsylvania......... 3
STATEMENTS OF THE NOMINEES
Clifton, Richard, Nominee to be Circuit Judge for the Ninth
Circuit........................................................ 9
Questionnaire................................................ 16
Conner, Christopher C., Nominee to be District Judge for the
Middle District of Pennsylvania................................ 66
Questionnaire................................................ 75
Conti, Joy Flowers, Nominee to be District Judge for the Western
District of Pennsylvania....................................... 66
Questionnaire................................................ 134
Jones, John E., III, Nominee to be District Judge for the Middle
District of Pennsylvania....................................... 68
Questionnaire................................................ 188
THURSDAY, MAY 23, 2002
STATEMENTS OF COMMITTEE MEMBERS
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
prepared statement............................................. 493
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 239
prepared statement........................................... 498
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 241
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina, prepared statement................................... 504
PRESENTERS
Allen, Hon. George, a U.S. Senator from the State of Virginia
presenting Henry E. Hudson, Nominee to be District Judge for
the Eastern District of Virginia............................... 252
Bond, Hon. Kit, a U.S. Senator from the State of Missouri
presenting Henry E. Autrey, Nominee to be District Judge for
the Eastern District of Missouri and Richard E. Dorr, Nominee
to be District Judge for the Western District of Missouri...... 249
Brady, Hon. Robert, a Representative in Congress from the State
of Pennsylvania presenting Timothy J. Savage, Nominee to be
District Judge for the Eastern District of Pennsylvania........ 256
Carnahan, Hon. Jean, a U.S. Senator from the State of Missouri
presenting Henry E. Autrey, Nominee to be District Judge for
the Eastern District of Missouri and Richard E. Dorr, Nominee
to be District Judge for the Western District of Missouri...... 254
Clay, Hon. William Lacy, a Representative in Congress from the
State of Missouri presenting Henry E. Autrey, Nominee to be
District Judge for the Eastern District of Missouri............ 255
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois presenting Amy J. St. Eve, Nominee to be District
Judge for the Northern District of Illinois.................... 244
Fitzgerald, Hon. Peter, a U.S. Senator from the State of Illinois
presenting Amy J. St. Eve, Nominee to be District Judge for the
Northern District of Illinois.................................. 245
Hutchinson, Hon. Tim, a U.S. Senator from the State of Arkansas
presenting Lavenski R. Smith, Nominee to be Circuit Judge for
the Eighth Circuit............................................. 246
Lincoln, Hon. Blanche, a U.S. Senator from the State of Arkansas
presenting Lavenski R. Smith, Nominee to be Circuit Judge for
the Eighth Circuit............................................. 247
Santorum, Hon. Rick, a U.S. Senator from the State of
Pennsylvania presenting Timothy J. Savage, Nominee to be
District Judge for the Eastern District of Pennsylvania........ 251
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania presenting Timothy J. Savage, Nominee to be
District Judge for the Eastern District of Pennsylvania........ 243
Warner, Hon. John, a U.S. Senator from the State of Virginia
presenting Henry E. Hudson, Nominee to be District Judge for
the Eastern District of Virginia............................... 243
STATEMENTS OF THE NOMINEES
Autrey, Henry E., Nominee to be District Judge for the Eastern
District of Missouri........................................... 302
Questionnaire................................................ 310
Dorr, Richard E., Nominee to be District Judge for the Western
District of Missouri........................................... 302
Questionnaire................................................ 338
Hudson, Henry E., Nominee to be District Judge for the Eastern
District of Virginia........................................... 302
Questionnaire................................................ 380
St. Eve, Amy J., Nominee to be District Judge for the Northern
District of Illinois........................................... 303
Questionnaire................................................ 410
Savage, Timothy J., Nominee to be District Judge for the Eastern
District of Pennsylvania....................................... 303
Questionnaire................................................ 441
Smith, Lavenski R., Nominee to be Circuit Judge for the Eighth
Circuit........................................................ 257
Questionnaire................................................ 270
QUESTIONS AND ANSWERS
Responses of Henry E. Hudson to questions submitted by Senator
Leahy.......................................................... 473
Responses of Amy J. St. Eve to questions submitted by Senator
Leahy.......................................................... 477
Responses of Timothy J. Savage to questions submitted by Senator
Leahy.......................................................... 480
Responses of Lavenski R. Smith to questions submitted by Senator
Cantwell....................................................... 482
Responses of Lavenski R. Smith to questions submitted by Senator
Kennedy........................................................ 487
SUBMISSIONS FOR THE RECORD
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois, statement in support of Amy St. Eve, Nominee to be
District Judge for the Northern District of Illinois........... 491
Moran, Hon. James P., a Representative in Congress from the State
of Virginia, letter in support of Henry E. Hudson, Nominee to
be District Judge for the Eastern District of Virginia......... 502
Saslaw, Hon. Richard L., Senate Minority Leader, Senate of the
Commonwealth of Virginia, Springfield, Virginia, letter........ 503
Virginia Bar Association, Jeanne F. Franklin, President,
Richmond, Virginia, letter..................................... 508
Warner, Hon. John, a U.S. Senator from the State of Virginia,
statement in support of Henry E. Hudson, Nominee to be District
Judge for the Eastern District of Virginia..................... 509
THURSDAY, JUNE 13, 2002
STATEMENT OF COMMITTEE MEMBER
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 726
PRESENTERS
Bartlett, Hon. Roscoe, a Representative in Congress from the
State of Maryland presenting Lawrence Greenfeld, Nominee to be
Director, Bureau of Justice Statistics, Department of Justice.. 519
Bunning, Hon. Jim, a U.S. Senator from the State of Kentucky
presenting John M. Rogers, Nominee to be Circuit Judge for the
Sixth Circuit.................................................. 516
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California presenting Morrison Cohen England, Jr., Nominee to
be District Judge for the Eastern District of California....... 513
McConnell, Hon. Mitch, a U.S. Senator from the State of Kenutcky
presenting John M. Rogers, Nominee to be Circuit Judge for the
Sixth Circuit.................................................. 515
Santorum, Hon. Rick, a U.S. Senator from the State of
Pennsylvania presenting David S. Cercone, Nominee to be
District Judge for the Western District of Pennsylvania........ 517
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania presenting David S. Cercone, Nominee to be
District Judge for the Western District of Pennsylvania........ 518
STATEMENTS OF THE NOMINEES
Cercone, David S., Nominee to be District Judge for the Western
District of Pennsylvania....................................... 559
Questionnaire................................................ 570
England, Morrison Cohen, Jr., Nominee to be District Judge for
the Eastern District of California............................. 560
Questionnaire................................................ 657
Greenfeld, Lawrence, Nominee to be Director, Bureau of Justice
Statistics, Department of Justice.............................. 561
Questionnaire................................................ 692
Marra, Kenneth A., Nominee to be District Judge for the Southern
District of Florida............................................ 560
Questionnaire................................................ 621
Rogers, John M., Nominee to be Circuit Judge for the Sixth
Circuit........................................................ 521
Questionnaire................................................ 528
QUESTIONS AND ANSWERS
Responses of John M. Rogers to questions submitted by Senator
Leahy.......................................................... 714
Responses of John M. Rogers to questions submitted by Senator
Kennedy........................................................ 721
SUBMISSIONS FOR THE RECORD
Boxer, Hon. Barbara, a U.S. Senator from the State of California,
letter in support of Morrison Cohen England, Jr., Nominee to be
District Judge for the Eastern District of California.......... 724
Graham, Hon. Bob, a U.S. Senator from the State of Florida,
letter in support of Kenneth A. Marra, Nominee to be District
Judge for the Southern District of Florida..................... 725
THURSDAY, JUNE 27, 2002
STATEMENTS OF COMMITTEE MEMBERS
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 744
prepared statements and attachment........................... 982
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin... 737
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 996
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 735
PRESENTERS
Hart, Hon. Melissa, a Representative in Congress from the State
of Pennsylvania presenting Arthur Schwab and Terrence McVerry,
Nominees to be District Judges for the Western District of
Pennsylvania................................................... 751
Hollings, Hon. Fritz, a U.S. Senator from the State of South
Carolina presenting Dennis Shedd, Nominee to be Circuit Judge
for the Fourth Circuit......................................... 736
prepared statement........................................... 992
Santorum, Hon. Rick, a U.S. Senator from the State of
Pennsylvania presenting Arthur Schwab and Terrence McVerry,
Nominees to be District Judges for the Western District of
Pennsylvania................................................... 738
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania presenting Arthur Schwab and Terrence McVerry,
Nominees to be District Judges for the Western District of
Pennsylvania................................................... 737
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina presenting Dennis Shedd, Nominee to be Circuit Judge
for the Fourth Circuit......................................... 736
prepared statement........................................... 1002
Wilson, Hon. Joe, a Representative in Congress from the State of
South Carolina presenting Dennis Shedd, Nominee to be Circuit
Judge for the Fourth Circuit................................... 750
STATEMENTS OF THE NOMINEES
McVerry, Terrence, Nominee to be District Judge for the Western
District of Pennsylvania....................................... 741
Questionnaire................................................ 865
Schwab, Arthur, Nominee to be District Judge for the Western
District of Pennsylvania....................................... 740
Questionnaire................................................ 806
Shedd, Dennis, Nominee to be Circuit Judge for the Fourth Circuit 740
Questionnaire................................................ 769
QUESTIONS AND ANSWERS
Responses of Dennis Shedd to questions submitted by Senator
Cantwell....................................................... 922
Responses of Dennis Shedd to questions submitted by Senator
Edwards........................................................ 935
Responses of Dennis Shedd to questions submitted by Senator
Feingold....................................................... 942
Responses of Dennis Shedd to questions submitted by Senator
Kennedy........................................................ 952
Response of Dennis Shedd to a question submitted by Senator
Specter........................................................ 965
Responses of Arthur Schwab to questions submitted by Senator
Leahy.......................................................... 970
SUBMISSION FOR THE RECORD
Jones, Thomas W., Jr., Attorney at Law, Rosenberg Proutt Funk &
Greenberg, LLP, Baltimore, Maryland, letter in support of
Dennis Shedd, Nominee to be Circuit Judge for the Fourth
Circuit........................................................ 995
TUESDAY, JULY 23, 2002
STATEMENTS OF COMMITTEE MEMBERS
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 1013
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1014
prepared statement........................................... 1323
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1021
prepared statement........................................... 1337
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky,
prepared statement and attachment.............................. 1341
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 1063
PRESENTERS
Gramm, Hon. Phil, a U.S. Senator from the State of Texas
presenting Priscilla Owen, Nominee to be Circuit Judge for the
Fifth Circuit.................................................. 1022
Granger, Hon. Kay, a Representative in Congress from the State of
Texas presenting Priscilla Owen, Nominee to be Circuit Judge
for the Fifth Circuit.......................................... 1025
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas presenting Priscilla Owen, Nominee to be Circuit Judge
for the Fifth Circuit.......................................... 1029
Nelson, Hon. Bill, a U.S. Senator from the State of Florida
presenting Timothy J. Corrigan, Nominee to be District Judge
for the Middle District of Florida and Jose E. Martinez,
Nominee to be District Judge for the Southern District of
Florida........................................................ 1024
prepared statement........................................... 1353
STATEMENTS OF THE NOMINEES
Corrigan, Timothy J., Nominee to be District Judge for the Middle
District of Florida............................................ 1131
Questionnaire................................................ 1135
Martinez, Jose E., Nominee to be District Judge for the Southern
District of Florida............................................ 1131
Questionnaire................................................ 1168
Owen, Priscilla, Nominee to be Circuit Judge for the Fifth
Circuit........................................................ 1026
Questionnaire................................................ 1085
prepared statement........................................... 1359
QUESTIONS AND ANSWERS
Responses of Priscilla Owen to questions submitted by Senator
Feingold....................................................... 1212
Responses of Priscilla Owen to questions submitted by Senator
Kennedy........................................................ 1225
Responses of Priscilla Owen to questions submitted by Senator
Leahy.......................................................... 1242
Responses of Priscilla Owen to questions submitted by Senator
Schumer........................................................ 1268
SUBMISSIONS FOR THE RECORD
Bishop, E. Thomas, President, Texas Association of Defense
Counsel, Inc., Austin, Texas, letter........................... 1279
Casanova, Roy V., Jr., Legislative Director, Republican National
Hispanic Assembly, San Antonio, Texas, letter.................. 1280
Concerned Women for America, Washington, D.C., memorandum........ 1281
De Leon, Hector, Attorney at Law, De Leon, Boggins & Icenogle,
Austin, Texas, letter.......................................... 1295
Gonzales, Alberto R., Counsel to the President, White House,
Washington, D.C., letter....................................... 1298
Gonzalez, Raul A. and Rose Spector, Justices, Texas Supreme
Court, Austin, Texas, joint letter............................. 1301
Graham, Hon. Bob, a U.S. Senator from the State of Florida,
letter in support of Timothy J. Corrigan, Nominee to be
District Judge for the Middle District of Florida and Jose E.
Martinez, Nominee to be District Judge for the Southern
District of Florida............................................ 1302
Gray, C. Boyden, former Counsel to the President, Washington,
D.C., article.................................................. 1304
Hill, John L., former Chief Justice, Texas Supreme Court,
Houston, Texas, letter......................................... 1330
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas.......................................................... 1333
Hutchison, Hon. Kay Bailey and Hon. Phil Gramm, U.S. Senators
from the State of Texas, joint letter.......................... 1332
Ivey, Jon David, Counsellor at Law, Baker & Hostetler, LLP,
Houston, Texas, letter......................................... 1334
Jordan, Darrell E., Attorney at Law, Hughes Luce LLP, Dallas,
Texas, letter.................................................. 1335
Matthews, Charles W., Irving, Texas, letter...................... 1340
Mott, Robert, Attorney at Law, Perdue, Brandon, Fiedler, Collins
& Mott, L.L.P., Houston, Texas, letter......................... 1352
Obenhaus, Stacy R., Gardere Wynne Sewell LLP, Dallas, Texas,
letter......................................................... 1358
Ploeger, Lori R.E., Attorney at Law, Austin, Texas, letter....... 1363
Policyholders of America, letter................................. 1365
Reynolds, Herbert H., President and Chancellor Emeritus, Baylor
University, Waco, Texas, letter................................ 1367
Schwartz, Victor E., Attorney at Law, Shook, Hardy & Bacon
L.L.P., Washington, D.C., letter............................... 1368
Shapiro, Hon. Florence, Senator, Senate of the State of Texas,
Austin, Texas, letter.......................................... 1372
Smith, Jason C.N., Attorney at Law, Fort Worth, Texas, letter.... 1374
Vaughan, Shelton M., Attorney at Law, Houston, Texas, letter..... 1378
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ALPHABETICAL LIST OF NOMINEES
Autrey, Henry E., Nominee to be District Judge for the Eastern
District of Missouri........................................... 302
Questionnaire................................................ 310
Cercone, David S., Nominee to be District Judge for the Western
District of Pennsylvania....................................... 559
Questionnaire................................................ 570
Clifton, Richard, Nominee to be Circuit Judge for the Ninth
Circuit........................................................ 9
Questionnaire................................................ 16
Conner, Christopher C., Nominee to be District Judge for the
Middle District of Pennsylvania................................ 66
Questionnaire................................................ 75
Conti, Joy Flowers, Nominee to be District Judge for the Western
District of Pennsylvania....................................... 66
Questionnaire................................................ 134
Corrigan, Timothy J., Nominee to be District Judge for the Middle
District of Florida............................................ 1131
Questionnaire................................................ 1135
Dorr, Richard E., Nominee to be District Judge for the Western
District of Missouri........................................... 302
Questionnaire................................................ 338
England, Morrison Cohen, Jr., Nominee to be District Judge for
the Eastern District of California............................. 560
Questionnaire................................................ 657
Greenfeld, Lawrence, Nominee to be Director, Bureau of Justice
Statistics, Department of Justice.............................. 561
Questionnaire................................................ 692
Hudson, Henry E., Nominee to be District Judge for the Eastern
District of Virginia........................................... 302
Questionnaire................................................ 380
Jones, John E., III, Nominee to be District Judge for the Middle
District of Pennsylvania....................................... 68
Questionnaire................................................ 188
Marra, Kenneth A., Nominee to be District Judge for the Southern
District of Florida............................................ 560
Questionnaire................................................ 621
Martinez, Jose E., Nominee to be District Judge for the Southern
District of Florida............................................ 1131
Questionnaire................................................ 1168
McVerry, Terrence, Nominee to be District Judge for the Western
District of Pennsylvania....................................... 741
Questionnaire................................................ 865
Owen, Priscilla, Nominee to be Circuit Judge for the Fifth
Circuit........................................................ 1026
Questionnaire................................................ 1085
prepared statement........................................... 1359
Rogers, John M., Nominee to be Circuit Judge for the Sixth
Circuit........................................................ 521
Questionnaire................................................ 528
Savage, Timothy J., Nominee to be District Judge for the Eastern
District of Pennsylvania....................................... 303
Questionnaire................................................ 441
Schwab, Arthur, Nominee to be District Judge for the Western
District of Pennsylvania....................................... 740
Questionnaire................................................ 806
Shedd, Dennis, Nominee to be Circuit Judge for the Fourth Circuit 740
Questionnaire................................................ 769
Smith, Lavenski R., Nominee to be Circuit Judge for the Eighth
Circuit........................................................ 257
Questionnaire................................................ 270
St. Eve, Amy J., Nominee to be District Judge for the Northern
District of Illinois........................................... 303
Questionnaire................................................ 410
NOMINATION OF RICHARD CLIFTON, NOMINEE TO BE CIRCUIT JUDGE FOR THE
NINTH CIRCUIT; CHRISTOPHER C. CONNER, NOMINEE TO BE DISTRICT JUDGE FOR
THE MIDDLE DISTRICT OF PENNSYLVANIA; JOY FLOWERS CONTI, NOMINEE TO BE
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA; AND JOHN E.
JONES, III, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA
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THURSDAY, MAY 9, 2002
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, Pursuant to notice, at 2:05 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Maria
Cantwell presiding.
Present: Senators Cantwell, Leahy, and Specter.
OPENING STATEMENT OF HON. MARIA CANTWELL, A U.S. SENATOR FROM
THE STATE OF WASHINGTON
Senator Cantwell. The Senate Judiciary Committee will come
to order.
Good afternoon. I would like to welcome everyone here to
the Judiciary Committee's 16th nomination hearing of 2002. We
are here to consider the nominations of four individuals to the
Federal bench, one nominee for the Ninth Circuit Court of
Appeals, and three nominees to the district courts in
Pennsylvania.
We are fortunate to have a talented group of nominees with
us, and I would like to extend a welcome to them and to their
families who are here, and the friends that may have joined
them as well.
I am pleased to be able to chair this hearing today. Moving
57 judicial nominees through the confirmation process and on to
the Federal courts around the country over the past 10 months
has required that all the members assist the chairman, and I am
happy to take part in that, as well as today's hearing.
The nominees here today all have strong records that have
demonstrated the ability to analyze complex and important legal
concepts in a manner befitting a Federal judge. Their records
reflect a commitment to our fundamental constitutional
protections and rights, including the advancement and
protection of civil rights and liberties for everyone.
Some of the nominees have the support of bipartisan
delegations, and all are here with the support of both of their
home state Senators. We take that support and sponsorship
seriously. As Federal judges, the nominees before us will have
a vital role to play at very difficult times in our Nation's
history. But with their individual records of public service, I
am confident that they will take this role seriously, take the
responsibility to heart, and ensure that the decisions that
they make demonstrate the fairmindedness that we rely upon and
that have been a part of our rich history and judicial
precedent.
I would like to make a special note that Mr. Clifton, the
nominee for the Ninth Circuit Court of Appeals, is a long-time
resident of Hawaii, and upon his confirmation he will be the
first member of the Ninth Circuit Court actually from Hawaii,
since 1984. My state of Washington is part of the Ninth Circuit
Court and has a longstanding and close relationship with
Hawaii. I am pleased that Hawaii will have local representation
on the court of appeals.
Before we hear from the distinguished Senators here that
are taking part in this hearing to introduce the nominees, I
would like to ask Senator Specter for any of his comments.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Well, thank you, Madam Chairwoman. I am
delighted to see these distinguished judicial nominees, even
more delighted to see three from the Commonwealth of
Pennsylvania. Let the proceedings begin.
Senator Cantwell. We really do want these nominees.
[Laughter.]
Senator Cantwell. Senator Akaka, would you like to start?
PRESENTATION OF RICHARD CLIFTON, NOMINEE TO BE CIRCUIT JUDGE
FOR THE NINTH CIRCUIT BY HON. DANIEL AKAKA, A U.S. SENATOR FROM
THE STATE OF HAWAII
Senator Akaka. Thank you very much, Madam Chairwoman. I
greatly appreciate this opportunity to appear before this
committee this afternoon on the nomination of Richard Clifton
to the United States Court of Appeals for the Ninth Circuit. I
would like to welcome with much aloha Mr. Clifton and his wife,
Teresa, and his family.
Aloha, and welcome.
Madam Chairman, I want to commend this committee and the
Senate for the progress made on judicial nominations during the
107th Congress. I applaud the committee and its members and the
committee staff for holding 16 hearings involving 55 judicial
nominations during the past 10 months, leading to the
confirmation of at least 52 judicial nominees in the 107th
Congress. I am glad that today we confirm four of them.
As you know, Hawaii has waited a number of years for Senate
confirmation of a Hawaii resident for a position on the U.S.
Court of Appeals for the Ninth Circuit. In 1995, I introduced
legislation to require representation on the court from each
State within the jurisdiction of the court. We have waited many
years for this opportunity. I am pleased that Hawaii will
finally have a judge on the Ninth Circuit.
I first had the pleasure of meeting Mr. Clifton last year,
after I learned that the White House was considering him for
this judicial position. Mr. Clifton has had a distinguished
legal career. The Hawaii State Bar Association found him to be
highly qualified for this position.
A graduate of Princeton University, he received his juris
doctorate from the Yale Law School in 1975. Mr. Clifton has
practiced in Hawaii since 1975 and has been a partner with the
law firm of Cades, Schutte, Fleming and Wright in Honolulu,
Hawaii, since 1982.
Mr. Clifton is licensed to practice before Hawaii's State
and Federal courts, Illinois State courts, the United States
Courts of Appeals for the Second and Ninth Circuits, and the
U.S. Supreme Court. Mr. Clifton has written articles published
in the Yale Review of Law and Social Action and the Hawaii Bar
News. He has extensive legal experience in civil litigation,
primarily business and commercial litigation. I believe he will
be an asset to the Court of Appeals for the Ninth Circuit, and
I offer my full support of his nomination.
Thank you very much for this chance to speak up on him.
Thank you very much.
Senator Cantwell. Thank you, Senator Akaka. As I said in my
statement, we do appreciate you being here and the comments
that you have made about the nominee.
Senator Akaka. I would like to be excused for a markup.
Senator Cantwell. Thank you.
Senator Specter, would you like to introduce the nominees
from Pennsylvania?
PRESENTATION OF CHRISTOPHER C. CONNER, NOMINEE TO BE DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, JOY FLOWERS
CONTI, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF
PENNSYLVANIA, AND JOHN E. JONES, III, NOMINEE TO BE DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA BY HON. ARLEN
SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Specter. Yes, thank you very much.
The nominees are, ladies first, Joy Flowers Conti, who
brings an outstanding academic and professional resume and
public service, a graduate of Duquesne University in 1970 and
the law school in 1973, summa cum laude. The first woman hired
as an associate by Kirkpatrick and Lockhart, a very prestigious
Pittsburgh law firm, she was later professor at the Duquesne
University School of Law. She is co-chair of the Pennsylvania
Bar Association's Task Force on Legal Services for the Poor. So
Ms. Conti has quite a record of academic achievement and work
as a professor and also in the community sector.
Christopher C. Conner is a graduate of Cornell University,
with a bachelor's degree in 1979, and Dickinson Law School in
1972, a shareholder--that is the current word for partner, with
the corporate structure taking over the law firms--in the
distinguished law firm of Mette, Evans and Woodside, and vice
president of the Pennsylvania Bar Association. He received two
special achievement awards from the Pennsylvania Bar for
leadership in the campaign for reform of judicial discipline
and co-chairing the statewide high school mock trial
competition.
John Jones has had a distinguished career, a bachelor's
degree from Dickinson College in 1977 and Dickinson School of
Law in 1980. He has served as chairman of the Commonwealth of
Pennsylvania Liquor Control Board from 1995 to the present
time, and that is a very complicated, very high-pressure job.
He has had a distinguished record in the practice of law,
having a one-man office, a great item, from 1986 to the present
time, almost an extinct species. He had been an associate and
partner in Dolbin, Cori and Jones, a very prestigious law firm
in Pottsville, Pennsylvania.
I could say a great deal more about these three outstanding
nominees, but I am going to defer at this time, if I may, to my
distinguished colleague, Senator Santorum.
PRESENTATION OF CHRISTOPHER C. CONNER, NOMINEE TO BE DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, JOY FLOWERS
CONTI, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF
PENNSYLVANIA, AND JOHN E. JONES, III, NOMINEE TO BE DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA BY HON. RICK
SANTORUM, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Santorum. Thank you, Senator. I appreciate the
opportunity to be here, and I want to thank the committee for
holding hearings on these three district court nominees from
Pennsylvania. We have had 11 vacancies in Pennsylvania. Three
have been confirmed to date, and this will double that number
and we are very happy to see that progress here today.
I too will take them in order, as Senator Specter did. Let
me first comment on Joy Conti. Joy, as you mentioned, was one
of the first hired at Kirkpatrick and Lockhart. And you are
right; it is a very distinguished firm. I used to work at it.
She was a partner when I was a lowly associate at that law firm
and she had an incredible reputation for integrity, for hard
work, and being just incredibly fair in dealing obviously with
her clients, but also with those of us who were underlings at
the firm.
She had just a sparkling reputation, and I am very, very
excited. She no longer works at that firm. She works at
Buchanan and Ingersoll, but she had an incredible reputation at
the firm and has distinguished herself in the Pittsburgh legal
community over quite a period of years and we are very, very
fortunate that she has agreed to take on this task of serving
in the Federal judiciary. So I want to thank her for that, and
thank her husband and three children for being here today.
Kit
NOMINATION OF RICHARD CLIFTON, NOMINEE TO BE CIRCUIT JUDGE FOR THE
NINTH CIRCUIT; CHRISTOPHER C. CONNER, NOMINEE TO BE DISTRICT JUDGE FOR
THE MIDDLE DISTRICT OF PENNSYLVANIA; JOY FLOWERS CONTI, NOMINEE TO BE
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA; AND JOHN E.
JONES, III, NOMINEE TO BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA
----------
THURSDAY, MAY 9, 2002
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, Pursuant to notice, at 2:05 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Maria
Cantwell presiding.
Present: Senators Cantwell, Leahy, and Specter.
OPENING STATEMENT OF HON. MARIA CANTWELL, A U.S. SENATOR FROM
THE STATE OF WASHINGTON
Senator Cantwell. The Senate Judiciary Committee will come
to order.
Good afternoon. I would like to welcome everyone here to
the Judiciary Committee's 16th nomination hearing of 2002. We
are here to consider the nominations of four individuals to the
Federal bench, one nominee for the Ninth Circuit Court of
Appeals, and three nominees to the district courts in
Pennsylvania.
We are fortunate to have a talented group of nominees with
us, and I would like to extend a welcome to them and to their
families who are here, and the friends that may have joined
them as well.
I am pleased to be able to chair this hearing today. Moving
57 judicial nominees through the confirmation process and on to
the Federal courts around the country over the past 10 months
has required that all the members assist the chairman, and I am
happy to take part in that as well as today's hearing.
The nominees here today all have strong records that have
demonstrated the ability to analyze complex and important legal
concepts in a manner befitting a Federal judge. Their records
reflect a commitment to our fundamental constitutional
protections and rights, including the advancement and
protection of civil rights and liberties for everyone.
Some of the nominees have the support of bipartisan
delegations, and all are here with the support of both of their
home state Senators. We take that support and sponsorship
seriously. As Federal judges, the nominees before us will have
a vital role to play at very difficult times in our Nation's
history. But with their individual records of public service, I
am confident that they will take this role seriously, take the
responsibility to heart, and ensure that the decisions that
they make demonstrate the fairmindedness that we rely up on and
that have been a part of our rich history and judicial
precedent.
I would like to make a special note that Mr. Clifton, the
nominee for the Ninth Circuit Court of Appeals, is a long-time
resident of Hawaii, and upon his confirmation he will be the
first member of the Ninth Circuit Court actually from Hawaii,
since 1984. My stae of Washington, is part of the Ninth Circuit
Court and has a longstanding and close relationship with
Hawaii. I am pleased that Hawaii will have local representation
on the court of appeals.
Before we hear from the distinguished Senators here that
are taking part in this hearing to introduce the nominees, I
would like to ask Senator Specter for any of his comments.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Well, thank you, Madam Chairwoman. I am
delighted to see these distinguished judicial nominees, even
more delighted to see three from the Commonwealth of
Pennsylvania. Let the proceedings begin.
Senator Cantwell. We really do want these nominees.
[Laughter.]
Senator Cantwell. Senator Akaka, would you like to start?
PRESENTATION OF RICHARD CLIFTON, NOMINEE TO BE CIRCUIT JUDGE
FOR THE NINTH CIRCUIT BY HON. DANIEL AKAKA, A U.S. SENATOR FROM
THE STATE OF HAWAII
Senator Akaka. Thank you very much, Madam Chairwoman. I
greatly appreciate this opportunity to appear before this
committee this afternoon on the nomination of Richard Clifton
to the United States Court of Appeals for the Ninth Circuit. I
would like to welcome with much aloha Mr. Clifton and his wife,
Teresa, and his family.
Aloha, and welcome.
Madam Chairman, I want to commend this committee and the
Senate for the progress made on judicial nominations during the
107th Congress. I applaud the committee and its members and the
committee staff for holding 16 hearings involving 55 judicial
nominations during the past 10 months, leading to the
confirmation of at least 52 judicial nominees in the 107th
Congress. I am glad that today we confirm four of them.
As you know, Hawaii has waited a number of years for Senate
confirmation of a Hawaii resident for a position on the U.S.
Court of Appeals for the Ninth Circuit. In 1995, I introduced
legislation to require representation on the court from each
State within the jurisdiction of the court. We have waited many
years for this opportunity. I am pleased that Hawaii will
finally have a judge on the Ninth Circuit.
I first had the pleasure of meeting Mr. Clifton last year,
after I learned that the White House was considering him for
this judicial position. Mr. Clifton has had a distinguished
legal career. The Hawaii State Bar Association found him to be
highly qualified for this position.
A graduate of Princeton University, he received his juris
doctorate from the Yale Law School in 1975. Mr. Clifton has
practiced in Hawaii since 1975 and has been a partner with the
law firm of Cades, Schutte, Fleming and Wright in Honolulu,
Hawaii, since 1982.
Mr. Clifton is licensed to practice before Hawaii's State
and Federal courts, Illinois State courts, the United States
Courts of Appeals for the Second and Ninth Circuits, and the
U.S. Supreme Court. Mr. Clifton has written articles published
in the Yale Review of Law and Social Action and the Hawaii Bar
News. He has extensive legal experience in civil litigation,
primarily business and commercial litigation. I believe he will
be an asset to the Court of Appeals for the Ninth Circuit, and
I offer my full support of his nomination.
Thank you very much for this chance to speak up on him.
Thank you very much.
Senator Cantwell. Thank you, Senator Akaka. As I said in my
statement, we do appreciate you being here and the comments
that you have made about the nominee.
Senator Akaka. I would like to be excused for a markup.
Senator Cantwell. Thank you.
Senator Specter, would you like to introduce the nominees
from Pennsylvania?
PRESENTATION OF CHRISTOPHER C. CONNER, NOMINEE TO BE DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, JOY FLOWERS
CONTI, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF
PENNSYLVANIA, AND JOHN E. JONES, III, NOMINEE TO BE DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA BY HON. ARLEN
SPECTER, A UNITED STATES SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Specter. Yes, thank you very much.
The nominees are, ladies first, Joy Flowers Conti, who
brings an outstanding academic and professional resume and
public service, a graduate of Duquesne University in 1970 and
the law school in 1973, summa cum laude. The first woman hired
as an associate by Kirkpatrick and Lockhart, a very prestigious
Pittsburgh law firm, she was later professor at the Duquesne
University School of Law. She is co-chair of the Pennsylvania
Bar Association's Task Force on Legal Services for the Poor. So
Ms. Conti has quite a record of academic achievement and work
as a professor and also in the community sector.
Christopher C. Conner is a graduate of Cornell University,
with a bachelor's degree in 1979, and Dickinson Law School in
1972, a shareholder--that is the current word for partner, with
the corporate structure taking over the law firms--in the
distinguished law firm of Mette, Evans and Woodside, and vice
president of the Pennsylvania Bar Association. He received two
special achievement awards from the Pennsylvania Bar for
leadership in the campaign for reform of judicial discipline
and co-chairing the statewide high school mock trial
competition.
John Jones has had a distinguished career, a bachelor's
degree from Dickinson College in 1977 and Dickinson School of
Law in 1980. He has served as chairman of the Commonwealth of
Pennsylvania Liquor Control Board from 1995 to the present
time, and that is a very complicated, very high-pressure job.
He has had a distinguished record in the practice of law,
having a one-man office, a great item, from 1986 to the present
time, almost an extinct species. He had been an associate and
partner in Dolbin, Cori and Jones, a very prestigious law firm
in Pottsville, Pennsylvania.
I could say a great deal more about these three outstanding
nominees, but I am going to defer at this time, if I may, to my
distinguished colleague, Senator Santorum.
PRESENTATION OF CHRISTOPHER C. CONNER, NOMINEE TO BE DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, JOY FLOWERS
CONTI, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF
PENNSYLVANIA, AND JOHN E. JONES, III, NOMINEE TO BE DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA BY HON. RICK
SANTORUM, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Santorum. Thank you, Senator. I appreciate the
opportunity to be here, and I want to thank the committee for
holding hearings on these three district court nominees from
Pennsylvania. We have had 11 vacancies in Pennsylvania. Three
have been confirmed to date, and this will double that number
and we are very happy to see that progress here today.
I too will take them in order, as Senator Specter did. Let
me first comment on Joy Conti. Joy, as you mentioned, was one
of the first hired at Kirkpatrick and Lockhart. And you are
right; it is a very distinguished firm. I used to work at it.
She was a partner when I was a lowly associate at that law firm
and she had an incredible reputation for integrity, for hard
work, and being just incredibly fair in dealing obviously with
her clients, but also with those of us who were underlings at
the firm.
She had just a sparkling reputation, and I am very, very
excited. She no longer works at that firm. She works at
Buchanan and Ingersoll, but she had an incredible reputation at
the firm and has distinguished herself in the Pittsburgh legal
community over quite a period of years and we are very, very
fortunate that she has agreed to take on this task of serving
in the Federal judiciary. So I want to thank her for that, and
thank her husband and three children for being here today.
Kit Conner, or Christopher Charles Conner, is looking for a
position here in the Middle District of Pennsylvania. He is
someone who is an outstanding litigator. He comes with the
highest of recommendations. He went to a great law school. It
happens to be the law school I graduated from, Dickinson School
of Law, and he has made a tremendous contribution to that
school and to jurisprudence in the Middle District. He is going
to be an outstanding member of the court.
John Jones is another outstanding lawyer and has served not
just as an outstanding lawyer, but served the community beyond
the practice of law. As Senator Specter mentioned, he was the
head of the Liquor Control Board in Pennsylvania which, as
Senator Specter noted, is a very difficult position. It is a
position that is constantly under scrutiny of attempts to
privatize, to modernize, and he has shepherded it through some
very difficult waters and dramatically improved efficiency
there and has just done an outstanding job for Governor Ridge,
and now Governor Schweiker, in an appointed position in that
regard. It shows his commitment to public service, but he has
also been, as Senator Specter noted, an outstanding litigator,
an outstanding attorney in Schuylkill County.
So I am very, very excited about all three of these
nominees. I think the committee, under review, will find them
to be incredible nominees for these positions, and I certainly
recommend that the committee move them to the floor and get
them voted on and seated quickly.
Senator Cantwell. So, Senator Santorum, you have not worked
with Mr. Jones before?
Senator Santorum. No, but I did mention he also went to the
same law school I went to. So he also has an outstanding legal
education.
Senator Cantwell. I thought perhaps you were on the Liquor
Control Board and we hadn't known about it.
[Laughter.]
Senator Santorum. No. I have tried. Well, that is another
story. Let's not go there.
Senator Cantwell. We are honored to have three of our
colleagues from the House here to also give comments on the
nominees. I am glad to see Representatives Cox and Holden, whom
I have served with in the House. It is good to have you here,
as well, Congresswoman Hart.
Representative Cox?
PRESENTATION OF RICHARD CLIFTON, NOMINEE TO BE CIRCUIT JUDGE
FOR THE NINTH CIRCUIT BY HON. CHRISTOPHER COX, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF CALIFORNIA
Reprensentative Cox. Thank you, Madam Chairman. I am happy
to be here with Senators Inouye and Akaka in support of
President Bush's nomination of Richard Clifton to the Ninth
Circuit Court of Appeals. Like you, I am a resident of the
Ninth Circuit and I am very, very pleased that Mr. Clifton,
whom I have known for a quarter century, is going to become a
judge of that court, if, as and when the Senate votes to
confirm him.
I have known Rick for 25 years. I have known his, wife,
Terrie, for 14 years, and most importantly I have known David
Clifton and Katherine Clifton for their entire lives. I think
it is a very nice thing that they all here from Honolulu with
us today.
As you have heard from Senator Akaka, Rick Clifton is an
outstanding lawyer, a legal scholar, a civic leader, and he is
very involved in his community and widely admired by his peers
in the profession. But it must be said at the outset that more
than all of that, and more even than his lifelong support of
the Chicago Cubs, Rick Clifton is a dedicated husband and
father. It is a special honor, as I said, for that reason, to
have his entire family here with us today.
When I first met Rick Clifton in 1977, I served as law
clerk to U.S. Court of Appeals Judge Herbert Choy, the first
Asian American Federal appellate judge in America. Rick had
preceded me as Judge Choy's law clerk in 1975, after graduating
with honors from Princeton University and Yale Law School.
By 1977, when I met him, he was a lawyer in private
practice with Cades, Schutte, Fleming and Wright, one of the
most prestigious law firms in Hawaii. He became a partner with
Cades Schutte in 1982. In the last two decades, his practice
has focused on commercial litigation, with an emphasis on
complex litigation and appellate practice. Today, Richard
Clifton is recognized as one of Hawaii's premier trial and
appellate lawyers.
Beyond the courtroom, he has been active in the bar. He has
served on the board of directors of the Hawaii Women's Legal
Foundation, and remains a member of that organization. He
served the State bar as chairman of its Special Committee on
Quality of Life for 3 years. He is a leader of the Hawaii
Chapter of the American Judicature Society and serves as a
director of the Ninth Circuit Historical Society. He is a
delegate to the Judicial Conference of the U.S. District Court
for the District of Hawaii. Previously, he has served as a
delegate to the Hawaii State Judicial Conference.
He has also been a teacher of law. For many years, he was
an adjunct professor of law at the University of Hawaii William
S. Richardson School of Law, where he taught appellate
advocacy.
But neither teaching law nor practicing law, nor even
serving the bar, was enough to consume Rick Clifton's energies
for public service. He served not just on the board of
directors, but as chairman of Hawaii Public Radio for 5 years,
from 1995 to 2000. He remains both a director and a member of
the executive committee of the board of Hawaii Public Radio.
Even more taxing perhaps was his service as a Cub Scout den
leader and a youth soccer coach and referee. I am certain that
refereeing youth soccer games provided exceptionally valuable
experience for his commercial litigation practice, and should
serve him especially well as well on the Federal bench.
From the time I met Richard Clifton a quarter century ago,
I have been impressed with his quickness of mind, his ready
grasp of even the most difficult legal concepts, his always
calm and reasoned approach to issues, and his honesty and
fairness. In these exceptional personal qualities, he is much
like Judge Herbert Choy, whom we both deeply admire and from
whose powerful example of integrity we both learned at a
formative point in our careers.
When confirmed by the Senate, Rick Clifton will become only
the second Hawaiian ever to serve on the Ninth Circuit. I
cannot imagine a more qualified person.
Madam Chairman, Senator Specter, it is both a privilege and
honor this afternoon to join with Senators Inouye and Akaka in
introducing Rick Clifton to this committee. He will be an
outstanding Federal judge because he is an outstanding
individual.
I thank you.
Senator Cantwell. Thank you, Congressman Cox, for your
comments.
Congressman Holden?
PRESENTATION OF JOHN E. JONES, III, NOMINEE TO BE DISTRICT
JUDGE FOR THE MIDDLE OF PENNSYLVANIA BY HON. TIM HOLDEN, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA
Mr. Holden. Madam Chairwoman, nice to see you again.
Senator Cantwell. Nice to see you.
Mr. Holden. Madam Chairman, it is an honor and a privilege
for me to be here to support my constituent and my friend, John
Jones, and I say that with all sincerity. As the Pennsylvanians
who are here today know, John and I were political opponents in
1992, but I stand here today in strong support of John Jones'
nomination to be a district judge in the Middle District of
Pennsylvania.
I have known John Jones for well over 20 years. I have
known him in a professional manner. Before coming to Congress,
I served as the sheriff of Schuylkill County, and during that
time period John was a practicing attorney in Schuylkill
County, as well as a public defender. I can tell you that all
the court-related staff who worked with John during those years
have the highest respect for the dedication, for the sincerity,
and for the real drive that he performed his duties with
representing his clients.
I also just want to comment briefly on what Senator Specter
and Senator Santorum have said about John's duty as chairman of
the Pennsylvania Liquor Control Board. As they have said, that
is not an easy position, but he has done an outstanding job and
he has made all Pennsylvanians, and particularly all Schuylkill
Countians proud of the job that he has done.
I am not an attorney, so I don't feel all that qualified to
comment on John's ability in the courtroom. But I come here
today with the strongest possible support and recommendations
from three members of the bench in Schuylkill County.
Judge Joseph F. McCluskey, who is now in senior status on
the Commonwealth Court and a former president judge of
Schuylkill County, Judge William Baldwin, who is now the
president judge in Schuylkill County, and Judge D. Michael
Stein, who is a sitting judge in the Court of Common Pleas in
Schuylkill County, have all spoken to me in the last 24 hours
and asked me to relay to you and to the committee their
strongest support of the qualifications of John and how they
believe he would really be an asset to the Middle District
Court.
Finally, Madam Chairwoman, I also would like to bring the
recommendation of a former prosecutor in Schuylkill County, Cal
Shields, who was the district attorney for 16 years and fought
neck-and-neck, head-to-head with John in many, many cases. They
also go back to their days as undergraduates at Dickinson
College, and he also sends his highest possible
recommendations, and believes truly that John would be a
tremendous asset to the court.
Madam Chairwoman, I want to note that all four of those
individuals are Democrats, so I want you know that this is a
bipartisan effort. People in Schuylkill County are proud to
have John Jones sit on the Federal court, and again I ask the
committee to move the nomination and take it to the Senate
floor.
I thank you for the opportunity today.
Senator Cantwell. Thank you, Congressman Holden.
Congresswoman Hart?
PRESENTATION OF JOY FLOWERS CONTI, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF PENNSYLVANIA BY HON. MELISSA HART,
A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA
Representative Hart. Thank you, Madam Chairwoman. Fellow
members and Senators Specter and Santorum, I am honored to be
here as well to reintroduce, as she has already been introduced
to you, Joy Flowers Conti, who is the nominee for the U.S.
District Court in western Pennsylvania.
I first met Joy Conti as a young attorney in Pittsburgh
just beginning my practice. She at that time already had a
stellar professional and personal reputation within our
community, and in the years since she has certainly built on
that reputation. She embodies all that is unique and great
about Pennsylvania. She has a strong and proud work ethic,
coupled with an important commitment to helping her community,
as her resume clearly indicates.
She was mentioned by the Senators as being a pioneer for
women in the law, being the first at her firm. But she has also
worked to improve the profession for women as a beginning
member of our women's bar association, and also contributing a
significant amount to the education of young women as a
professor at the Duquesne University School of Law, but also
furthering our legal knowledge as attorneys by giving a
significant amount of her time in continuing education as a
seminar speaker.
Her character and her dedication have well served the
clients of her law practice. She also has served the
individuals aided by the groups on which she voluntarily serves
as a board member throughout the community, whether it is
Catholic Charities or serving on one of her child's sport
team's mother's groups; I believe football mothers, in fact, at
this time.
She has always been respected by the legal community in
Allegheny County, where I have practiced law, and is just an
outstanding woman. Her talents and her dedication will serve us
all with honor on the U.S. district court and I recommend her
highly.
Thank you for allowing me to be here.
Senator Cantwell. Thank you, Congresswoman Hart, and again
thank you for taking time out of your schedules. We hope you
will look favorably on those Senate bills that we are passing
over to the House and we are glad that you made time today to
talk about these important nominees.
Thank you.
I would like to call up Richard Clifton.
If, Richard, you could just stand to be sworn in, do you
swear that the testimony you are about to give before the
committee will be the truth, the whole truth and nothing but
the truth, so help you God?
Mr. Clifton. I do.
Senator Cantwell. Welcome, Mr. Clifton, to the committee.
We obviously like nominees to take the opportunity to introduce
their families and friends who have traveled with them. I can't
think of too many people that could have traveled farther than
you and your family, so if you would please take that
opportunity.
STATEMENT OF RICHARD CLIFTON, OF HAWAII, NOMINEE TO BE CIRCUIT
JUDGE FOR THE NINTH CIRCUIT
Mr. Clifton. Thank you, Senator. I would like to start with
my family, seated directly behind me: my wife, Terrie; our
children, David and Katherine. Tied with us for the record of
longest distance, I am happy to recognize U.S. District Judge
Helen Gillmor, of the District of Hawaii, who I confess was in
Washington for other business but took advantage of the
opportunity to be here today--other business, had to leave.
And then there are several people from my past who have
promised to be discreet about my past, dating back to friends
in high school. Roger Wilson from Chicago and Jim Lutton from
Syracuse and Jim's son, Michael Lutton, are all here; my
college roommate, David Whitman, from Baltimore.
And then as you heard, I am a member of what we call the
Federal family of Judge Choy, the only Hawaii resident to sit
on the Ninth Circuit to date. Representative Cox is one of my
colleagues there, and two other of my colleagues from that
family are here, Anna Durand Kraus and Doug Jordan, both of
whom are lawyers here in Washington.
I don't know if somebody else has slipped in while I was in
the front, but I think that is it.
Senator Cantwell. Thank you, and welcome to all of you. We
appreciate you being here.
Obviously, Mr. Clifton, as a nominee to the circuit court
of appeals, you have not previously served as a judge so you
don't have a record of decisions that the committee can
evaluate regarding your commitment to precedent. With that in
mind, could you just comment, in your opinion, on how strongly
should judges follow precedent set in previous cases, and does
the commitment to following precedent change with the type of
court, whether it is the district court level or the court of
appeals? If you could comment on that?
Mr. Clifton. I would be happy to, Senator. A court of
appeals such as the one to which I have been nominated is
absolutely obligated to follow precedent set down by the U.S.
Supreme Court. It is also obligated, at least in the case of
the Ninth Circuit, to follow established Nine Circuit
precedent. So if there is a previous Ninth Circuit decision, an
individual judge or an individual panel of three judges is not
at liberty to alter or overturn that decision.
The court's procedures require than an en banc court be
called if there is to be a reversal or overturning of prior
Ninth Circuit precedent. So if I am given the opportunity to
serve, I would be bound by and would be committed to comply
with all precedent from the Supreme Court and all prior Ninth
Circuit Court decisions.
I apologize for my voice. I picked up a cold on the flight
here, I am afraid.
Senator Cantwell. You are likely aware of a trend of
decisions by the Supreme Court that have basically questioned
Congress' constitutional authority to pass Federal regulations.
In your opinion, are there any Federal statutes that go
beyond Congress' enumerated powers under the Constitution?
Mr. Clifton. I am not sure that I have a good answer to
that question, Senator. I haven't considered it. I am aware of
the recent decisions of the U.S. Supreme Court which have
called into question Congress' exercise of the commerce power,
for example, as to whether a particular statute properly falls
within the ambit of the power to regulate interstate commerce,
and suggestions that perhaps stronger connections have to be
made or more explicit findings might be useful. I am not aware
and have not identified any statutes that would run afoul of a
similar decision, so I am afraid I cannot identify any others
to you.
Senator Cantwell. Thank you. One issue that we have
obviously had a lot of dealings with on this committee so far
is the issue with regard to personal privacy, everything from
the appropriate level of government intervention into personal
decisions as it relates to the PATRIOT Act that we passed, to
other concerns about how businesses handle personal
information.
Do you believe there is a constitutional right to privacy
and can you just describe, if you do believe there is a
constitutional right, where that exists?
Mr. Clifton. Well, it is my understanding from Supreme
Court decisions which I would be obligated to follow that there
is, in fact, a constitutional right of privacy that I think
comes primarily from the 14th Amendment and the due process
rights of all citizens.
I should say that my own State of Hawaii has a separate
constitutional right of privacy. And there is no such separate
articulated right within the U.S. Constitution, but the Supreme
Court has found it within the document and I join that opinion.
Senator Cantwell. Thank you.
Senator Specter, do you have questions for Mr. Clifton?
Senator Specter. Yes, thank you very much.
The Supreme Court of the United States has stricken
considerable legislation on the grounds that Congress hasn't
``thought it through,'' challenging what I consider to be
fairly extensive records having been made in the legislative
process.
Have you followed those decisions?
Mr. Clifton. I have read a good number, I believe, of the
opinions that you are referring to.
Senator Specter. What are your views as to the scope of a
congressional record which is necessary in order to avoid
having them stricken on those constitutional grounds?
Mr. Clifton. Well, Senator, I believe the starting point
ought to be the assumption, indeed the legal presumption, that
an enactment of Congress is presumed to be constitutional, and
I don't believe any judge should lightly entertain the notion
that an act exceeds the power of Congress.
There certainly are constitutional limitations on the power
of Congress, as with each of the branches of Government. But
the starting point, I think, would be an assumption that
Congress had reason to do what it did, because it is Congress
that is supposed to make the laws, and exercised power that was
properly granted to it under the Constitution.
Senator Specter. What standing do you believe the Supreme
Court has to conclude that Congress hasn't thought some matter
through? Is the thought process of the Court superior to the
thought process of the Congress?
Mr. Clifton. Well, as a court of appeals judge, I would be
legally bound to follow Supreme Court precedent, so I don't
want to call that into question. I don't believe a
constitutional standard exists as to whether or not Congress
has sufficiently thought things through. I don't know that
that--in fact, indeed I don't believe that is a proper basis
for striking down any statute enacted by Congress as being an
excess of congressional power.
Senator Specter. There has been considerable disclosure of
people who have had their innocence established through DNA,
and there are many who are on death row who have been
exonerated by DNA evidence. Many of the States have been very
slow to give DNA tests to inmates who are serving for very long
periods of time.
One Federal judge made a finding that it was a
constitutional right to have DNA evidence, part of due process,
and a number of bills have been introduced on the subject, some
trying to encourage the States to give DNA tests. I have
introduced legislation to establish access to DNA testing as a
constitutional right pursuant to section 5 of the 14th
Amendment, which gives Congress the authority to legislate in
furtherance of due process.
You might want to submit a written response to this
question, or perhaps you would care to answer it now. Do you
think that the one district court which found a constitutional
right to have DNA testing is accurate?
Mr. Clifton. Senator, let me start by observing that Hawaii
does not have the death penalty, and I became aware when I was
asked about and considered accepting the nomination to the
Federal bench that there is a Federal death penalty, and
further that the Federal courts review State convictions. Other
States within the Ninth Circuit do have the death penalty and
it becomes an increasing part of any judge's responsibility to
deal with those issues.
Representative Cox revealed that I am a lifetime fan of the
Chicago Cubs, and because of that I daily check the Chicago
Tribune, which had a series a couple of years ago on what is
the case in Illinois and reached the conclusion that there were
as many innocent people on death row in Illinois as there had
been people put to death, a series which ultimately led
Governor Ryan to impose a moratorium on death penalties in
Illinois.
There must be enormous concern. The Supreme Court has
stated clearly that the death penalty is constitutional, and it
would be my obligation as a court of appeals judge to adhere to
that case law. Yet, any judge has to take seriously the
responsibility that he or she has when considering a matter of
literally life and death.
I don't know that I can comment to the precise question you
pose because it could come to me as a court of appeals judge;
that is, whether there is a constitutional right to DNA
testing. But I will observe that at least from my reading, I am
not aware of a challenge to Federal convictions of the same
kind there has been a challenge to State convictions.
I think such things as the Federal Public Defender Service
and the resources given to defense lawyers within the Federal
system makes an enormous difference in at least reducing the
possibility that an innocent man is convicted and sentenced to
death, and I think any judge considering cases brought before
the court needs to be mindful of that.
Senator Specter. Well, I think your observation about the
difference in procedures in the Federal court is accurate. But
as a court of appeals judge, you would have habeas corpus cases
which come up through the State.
I believe that the death penalty is a deterrent, and I
believe that having been district attorney of Philadelphia for
some 8 years. I am not going to take the time now to give my
reasons, but I think that the death penalty will be lost if it
is not administered properly and if there are not tests given
for DNA and adequate counsel provided, which I have taken up as
a legislative matter.
Beyond protecting the death penalty for society's interest,
it is a matter of fundamental fairness for the defendant not to
be in jail if there is the potential for exonerating evidence
to come up through DNA testing which wasn't available at the
time of his conviction and original sentencing.
Well, on to more serious matters, how did you become a Cub
fan?
[Laughter.]
Mr. Clifton. Exposure through my father, and proximity.
Chairman Leahy. Your answer may determine whether you get
through or not.
[Laughter.]
Mr. Clifton. My father was a Cub fan and he inflicted it on
me, as I am slowing inflicting it upon my own son.
Senator Cantwell. But coming to the Ninth Circuit, don't
you think you will pick a Ninth Circuit West Coast team?
Chairman Leahy. Trust me, you don't want to answer that
question.
[Laughter.]
Mr. Clifton. They have had a good team in Seattle lately,
so maybe I will find another team.
Senator Cantwell. Thank you.
Senator Specter. What was Stan Hack's lifetime batting
average?
Mr. Clifton. My father's generation, but I can probably
give you Billy Williams. I am afraid I can't give you Stan
Hack.
Senator Specter. Are you a native Chicagoan?
Mr. Clifton. No. My family moved there when I was 10, and
so I lived there until I went to college. Those were probably
the critical years of cementing the Cub fandom.
Senator Specter. Why did you pick the Yale Law School?
Mr. Clifton. Because at the time I believed that it was the
best law school in the country and----
Senator Specter. Now, you are in trouble with everybody but
me.
[Laughter.]
Mr. Clifton. I did say ``at the time.'' I was a foolish 21-
year-old at that time.
[Laughter.]
Senator Specter. Thank you very much, Mr. Clifton.
Mr. Clifton. Thank you, Senator.
Senator Cantwell. Thank you.
Senator Leahy has joined us. Senator Leahy, do you have
comments or questions?
Chairman Leahy. Both, Madam Chair. I obviously welcome
everybody here. I will put my whole statement in the record.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Leahy. I do have a couple of questions of Mr.
Clifton, but I was also glad to see Ms. Conti's nomination.
I commend you for taking the time to do this. Earlier in
the week, we were told that my friends on the other side of the
aisle would object, as they have the right to under the Senate
rules, to us holding hearings today. I am glad they did not
because I know a lot of you came from long distances to be
here.
I am glad Ms. Conti is here. It is the first hearing on a
nominee to the Western District of Pennsylvania since 1994. I
mention that because during the past 6 years under other
control of the Senate, no nominee from the Western District
received a hearing. In fact, one of the nominees to the Western
District, Lynette Norton, waited for almost 1,000 days. She did
not get a hearing or a vote, and she died, never knowing how we
might have voted. So I was glad that we could move far faster
on Ms. Conti.
I remember when Judge Legrome Davis was nominated by
President Clinton, the committee did not give him a hearing for
868 days, notwithstanding the very strong support he had from
the senior Senator from Pennsylvania, who had worked very hard
to get him a hearing. In fact, I give Senator Specter credit
for getting the President to renominate Judge Davis earlier
this year. Unfortunately, during the other time he couldn't get
a hearing or a vote.
In fact, the junior Senator from Pennsylvania testified
that Judge Davis did not get a hearing because local Democrats
objected. I was the ranking Democrat at that time and I never
heard that before. But I am glad he got through and I am glad
that we were able to get Ms. Conti through faster.
Let me ask you this, Mr. Clifton, on the question of DNA.
Obviously, that is not going to be dispositive in a lot of
cases. I think you would agree with me that there will be an
awful lot of cases, murder cases and others, in which there
will be no DNA. I mean, I wouldn't want us to fall in this trap
of thinking that we can determine guilt or innocence in a case
because of DNA, because in a lot of cases there just will be no
DNA evidence available.
Would you agree with that?
Mr. Clifton. I agree, Senator.
Chairman Leahy. Just as a lot of times in a trial people
say, well, let's wait for the fingerprint evidence, when in a
criminal case, a large majority of them, there is no
fingerprint evidence either. Would you agree with that?
Mr. Clifton. Yes, sir.
Chairman Leahy. Would you also agree, though, that what can
be the most important thing is to have competent counsel if
somebody is charged with a capital crime? Would you agree with
that? I am talking about competent counsel on both sides.
Mr. Clifton. I would certainly agree, and indeed from the
defendant's perspective one of the problems that has been
identified in many cases over the past few years where
apparently innocent persons have been convicted is the lack of
competent counsel at the time of trial and the lack of
resources the defendant needs to defend himself effectively.
Chairman Leahy. Wouldn't it be far more likely if you have
competent counsel, if there is DNA evidence or fingerprint
evidence or something like that, the counsel would have made
sure that was presented?
Mr. Clifton. DNA may be unique because it is becoming known
to us in a way that was not known before, and so----
Chairman Leahy. I am thinking of prospectively.
Mr. Clifton. Correct. Certainly, now that we know DNA we
evidence exists, competent counsel would be expected to pursue
that avenue if it had any applicability in the given case, if
they had evidence they could work with that would speak to
guilt or innocence.
Chairman Leahy. I mention the need for competent counsel.
There was a murder case in Texas where, in effect, the person
who was convicted appealed, supplying irrefutable evidence that
his attorney slept through most of the trial. The Texas Supreme
Court said the Constitution requires him to have counsel; it
does not require the counsel to be awake.
You are not going to be ruling on the Texas Supreme Court
case, but as a practicing lawyer, would you feel that counsel,
to be competent, should, at a minimum, stay awake during the
trial?
Mr. Clifton. You would hope so. I will confess having sat
in proceedings where sometimes I wondered if I wanted to stay
awake. But you think a criminal trial--you would hope that
counsel would be paying enough attention to follow what was
happening.
Chairman Leahy. You realize this desire to doze off during
a hearing never occurs in the U.S. Senate.
[Laughter.]
Mr. Clifton. Not when I am sitting here.
Chairman Leahy. We are usually dealing with billions of
dollars and things like that, but not with somebody's life.
Madam Chair, I just wanted to compliment you for holding
this hearing. I know you had a dozen other places you were
supposed to be and I do appreciate you doing it. I appreciate
the fact that the Senator from Pennsylvania has----
Senator Cantwell. Three nominees.
Chairman Leahy[continuing]. Three nominees here, and that
we are able to start moving finally on nominees for
Pennsylvania, a wonderful State.
Senator Cantwell. Thank you, Senator Leahy.
Thank you, Mr. Clifton, for your answers to the questions,
and you are excused.
Mr. Clifton. Thank you, Madam Chair.
[The biographical information of Mr. Clifton follows:]
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Senator Cantwell. I would like to call up now the three
district court nominees--Joy Conti, Christopher Conner, and
John Jones--and if you would please stand so we can swear you
in?
Do you swear that the testimony you are about to give
before the committee will be the truth, the whole truth and
nothing but the truth, so help you God?
Mr. Conner. I do.
Ms. Conti. I do.
Mr. Jones. I do.
Senator Cantwell. Thank you.
As with Mr. Clifton, we appreciate that family and friends
have joined you on this journey to Washington for this hearing
and if you would like to each take the opportunity to introduce
your family and friends, we will give you that opportunity.
Mr. Conner?
STATEMENT OF CHRISTOPHER C. CONNER, OF PENNSYLVANIA, NOMINEE TO
BE DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Mr. Conner. Thank you, Madam Chair. I am here with my wife
and four children--my wife, Kathy, and my four children, Greg,
Lauren, Ben, and Casey. My parents are here from Harrisburg,
Pennsylvania, Marcia and Ben Conner, as is my sister, Mona
Conner, who is an artist in Brooklyn, New York. I also have my
sister-in-law's husband, Eric Levine, here from Frederick,
Maryland.
I have been blessed with some long-time friendships from
Cornell University and three of my friends from Cornell are
here--Shaun Eisenhauer, Gregory Strub, and Samuel Fisher. I
also have some law school classmates and long-term friendships
that have developed over time, and one of the sitting Common
Pleas judges in Pennsylvania, Judge Tom Kistler, is here with
his wife, Mary Jane. And my friend, Randall Bachman, with his
wife, Lenore, and his daughter, Lauren, are here.
Thank you, Madam Chair.
Chairman Leahy. No wonder there is such a crowd here today.
Senator Cantwell. Thank you, Mr. Conner.
Ms. Conti?
STATEMENT OF JOY FLOWERS CONTI, OF PENNSYLVANIA, NOMINEE TO BE
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Ms. Conti. Thank you. It is an honor to be here, and a
privilege. I appreciate the opportunity to introduce my family
and colleagues and friends.
First of all, I would like to introduce my husband, Anthony
Thomas Conti; as we call him, Tony. He is my husband for 31
years and a big supporter of mine. I have my three sons with me
as well. My oldest son, Andrew, Drew, is 26; my second son,
Michael, who is 23; and my youngest son, Gregory, who is 16. He
is the football player presently. All my other boys have also
been football players in high school.
I am also fortunate to have with me my mother, Elizabeth
Rodgers. She is living in Richmond, Virginia, and in
Pittsburgh, Pennsylvania. I am happy that she is able to join
us today. My mother-in-law, Ann Conti, is also here and she has
been a big help to us throughout the years.
I am fortunate to have my brother here, Lieutenant General
Robert Flowers, who has the command of the Corps of Engineers
and is presently a resident in the District of Columbia. His
wife, Lynda, is here as well, and my nephew, Matt Flowers, who
is my brother's youngest son, is here.
I have my two sisters. My sister, Kathy Mayo, is here with
her husband, Bill Mayo, and their son, Bill Mayo. They are from
Richmond, Virginia. My youngest sister, Elizabeth, Betsy,
Horvat is here with her husband, Ken Horvat, and they have
traveled from Pittsburgh, Pennsylvania, to be with me today.
I also have my husband's brother, Mark Conti, and his wife,
Diane Conti. They have come down from Beaver Falls,
Pennsylvania, and with them are their two children, Kevin
Conti--and his wife, Jackie Conti. My niece, April Conti, and
her fiance, Jeremy Dean, are also here today.
I am fortunate to have a long-time friend of mine from
Pittsburgh who was a predecessor of mine as the President of
the Allegheny County Bar Association, and we have been friends
for many years, J. Frank McKenna. He is with the law firm of
Reed Smith. I am fortunate that he is here today, as well.
My fellow shareholder at Buchanan Ingersoll, Sister Melanie
DiPietro, is here with me. I am happy that she could join us.
And last but not least is my colleague at Buchanan, a personal
friend, my project assistant, Sarah Pankey. I am also pleased
to have my step-niece, Angela Pegram, who is going to be--who
just took her last exam at Catholic University Law School and
will be joining Jones Day in their D.C. office after she passes
the bar.
Have I forgotten anyone?
[Laughter.]
Senator Cantwell. Thank you, Ms. Conti.
Chairman Leahy. If I might, I apologize for the
mispronunciation of your name.
Ms. Conti. That is fine. We go variously, Conti or Conti,
so we answer to both.
Chairman Leahy. I grew up in an Italian American family and
many friends of mine in Vermont pronounce it Conti, and I
apologize.
Ms. Conti. Well, I pronounce it that way, too, but they
go--in Elwood City, where my husband is from, it is Conti. In
Pittsburgh, it is pronounced Conti, so do we answer to both.
Chairman Leahy. I don't feel so badly.
[Laughter.]
Senator Cantwell. Well, thank you, Ms. Conti.
Mr. Jones, if there is anybody left in the room----
[Laughter.]
Senator Cantwell. Thank you for being here and we would
love to hear introductions of your friends and family.
STATEMENT OF JOHN E. JONES, III, OF PENNSYLVANIA, NOMINEE TO BE
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Mr. Jones. I don't have as many, Madam Chairwoman. It is an
honor to be before this committee, and my name is a little
easier for everybody, but I have a number of folks here who
have honored me by their presence.
First and foremost, my family: my wife, Beth, and my
daughter, Meghan, and my son, John. John has the space shuttle
tie on right behind me. My parents are deceased, unfortunately,
but I am very honored to have my father-in-law here, Emil
Feryo. He is seated behind my wife and children; my nephew and
his grandson, Emil Feryo. And my sister-in-law, Amie Feryo, is
here as well.
I have a group of friends from the Pennsylvania Liquor
Control Board--my assistant, Emma Pettis; Patty Lookinbaugh;
Steve Schmidt; Darryl Stackhouse, our Director of
Administration from the Pennsylvania Liquor Control Board.
Patty Lookingbaugh's daughter, I think, is here also.
I also have a dear friend of mine from home, Frank
Schoeneman, from Schuylkill County. And Representative Bob
Allen from Schuylkill County, a member of the Pennsylvania
State House of Representatives, is here with me today.
Have I forgotten anybody? I hope that I have not. I
apologize if I have, but thank you, Madam Chairwoman.
Senator Cantwell. Well, thank you, and welcome to all of
you. We appreciate you attending this important hearing.
I will start, I think, with Ms. Conti and Mr. Conner.
Ms. Conti, your professional experience as a lawyer has
focused on general corporate matters, with a concentration in
bankruptcy. Mr. Conner, your experience has mostly been in
general civil litigation, I believe. Thus, you both have
limited criminal experience. As you know, a significant portion
of the Federal judicial docket deals with criminal matters.
Could you tell us how you plan to prepare to handle complex
criminal cases and what steps you will take to prepare for the
challenge of handling the criminal matters that will be before
you?
Ms. Conti. Madam Chair, that is a matter that I have given
some very serious consideration to. I have spoken with members
of the Federal bench in Western Pennsylvania and I have talked
with them about what I would need to do personally to prepare
for that. They have assured me that I would have their full
assistance.
I know that the Federal Judicial Center, as well as the
Administrative Office, has very fine educational programs which
I would be fully committed to participating in. I am a quick
study. I have entered various areas of the law and am able to
understand the read very diligently, and I would work very hard
to become competent in the areas of criminal law and procedure
as soon as possible.
Mr. Conner. Madam Chair, I would make the same commitment
that Ms. Conti has described, and make the same commitment
toward hard work and getting up to snuff in all of the areas of
criminal law that I am not currently exposed to, and relying
also on the resources of the Federal Judicial Center.
I have also spoken with the members of the court of the
Middle District and they have encouraged me to seek their
counsel if I am fortunate enough to be confirmed and I
certainly would do that.
Senator Cantwell. Thank you.
I see that we have been joined by Senator Inouye, from
Hawaii.
Senator if you would join these three distinguished
nominees at the table and give your comments on Richard
Clifton, whom we just heard from, we would be honored to hear
those comments.
Senator Specter. He has done very well so far, Senator
Inouye.
PRESENTATION OF RICHARD CLIFTON, OF HAWAII, NOMINEE TO BE
CIRCUIT JUDGE FO THE NINTH CIRCUIT BY HON. DANIEL K. INOUYE, A
U.S. SENATOR FROM THE STATE OF HAWAII
Senator Inouye. Madam Chairman and members of the
committee, I am pleased to present to you Richard R. Clifton,
Esquire, a very distinguished member of the State of Hawaii who
has been nominated by the President to serve on the Ninth
Circuit Court of Appeals.
He is here this afternoon with his wife, Teresa, whom you
have just seen, and two children, Katherine and David.
Mr. Clifton was born in Framingham, Massachusetts. He
received his bachelor of arts degree from Princeton and his
juris doctor from Yale Law School. He is currently a
distinguished member of the Hawaii State Bar Association and a
partner in the firm of Cades, Schutte, Fleming and Wright, and
until recently was legal counsel for the Hawaii Republican
Party.
I have met with Mr. Clifton, I have met with his family,
and I am certain he will serve this court with much distinction
and integrity. So I recommend his confirmation by this
committee and by the U.S. Senate.
Thank you very much.
Senator Cantwell. Senator Inouye, thank you for being here.
Mr. Clifton introduced his family and answered questions from
the committee, all of which I think were very well received by
the committee, including his comments on major league baseball
teams in America, and we look forward to proceeding.
Senator Inouye. Madam Chair, when do I vote for him?
[Laughter.]
Senator Cantwell. Well, I am sure there will be a Judiciary
Committee meeting shortly after today's hearing on these
nominees that we heard testimony and comments from today. So
thank you very much for being here.
Senator Inouye. Thank you, ma'am. May I be excused?
Senator Cantwell. Yes.
I thank the panel for their indulgence in allowing our
colleague to give his comments on Mr. Clifton's nomination.
Mr. Jones, you have served as the Chairman of the
Pennsylvania Liquor Control Board since 1995, I believe it is.
Mr. Jones. That is correct.
Senator Cantwell. In that capacity, you have had, I am
sure, to develop strategies on how to reduce the risks of
under-age drinking of young people. Could you tell us about
that, some of your strategies and what has worked in order to
prevent high-risk drinking?
Mr. Jones. We have had an emphasis, Senator, on under-age
drinking and binge drinking for the last 7 years of my tenure
and I have been very proud of our efforts. I don't want to go
on excessively long about them, but in a nutshell, Senator,
what we have done is created, among other things, over 70
campus-community coalitions across Pennsylvania where we have
put together college administrators, law enforcement officials,
students, liquor licensees, and others to come up with
strategies.
We believe that you need to have enforcement, but that you
can't arrest your way out of the problem of under-age drinking,
so we are getting to the culture, we think, on these college
campuses. I believe that under-age drinking and binge drinking
by our youth is one of the largest health risks that we face in
the United States today.
Among other things that we have done have been to train
licensees in good practices. We have created a statewide
coalition that will survive me, if I am fortunate enough to be
confirmed, Pennsylvanians Against Under-Age Drinking, which is
a broad coalition of groups all across the Commonwealth of
Pennsylvania.
Fundamentally, I think what we have done is we have taken a
problem that, although it had some attention 7 years ago, I
think we have put it on the radar screen for all of the United
States. And I am very happy to say that a lot of what have done
in Pennsylvania on the Liquor Control Board has been picked up
nationally by other States and duplicated, and that is the
highest form of flattery, I think, that we have been copied and
emulated in other States.
Senator Cantwell. Thank you.
Senator Specter, do you have questions for the nominees?
Senator Specter. Yes, thank you very much.
Ms. Conti, when were you hired by Kirkpatrick and Lockhart,
thus becoming the first woman to be employed by them?
Ms. Conti. I was the first woman summer associate in the
summer of 1972, and after I returned from clerking for a
justice on the Pennsylvania Supreme Court, I was the first
woman lawyer hired in 1974.
Senator Specter. Well, there has been quite a dramatic
change on the hiring of women from law schools and generally,
and quite a dramatic change in the number of women who go to
law school. I know in my class there were 4 women out of 125,
and today I understand the statistics are about 50-50.
How many were in your class at Yale?
Mr. Clifton. About 25 percent.
Senator Specter. So that shows some improvement, but it is
surprising that it would take until 1974 for a major firm--how
many lawyers did the firm have when you were hired?
Ms. Conti. At that time, they were considered to be quite a
large firm and we had 35 lawyers. The largest firm in
Pittsburgh at that time was Reed Smith and they had 50, and
that was in the summer. When I came back in 1974, Kirkpatrick
and Lockhart had approximately 50 lawyers. Today, they have
over 450, perhaps over 600.
Senator Specter. When I joined Barnes, Decker, Price,
Meyers and Rhodes in 1956, that was the same year that the
first woman was hired there, although come to think of it,
there was a woman partner before. When I was elected D.A. in
1965, I made it a top priority to hire a woman, and then women,
but in the first group a woman.
I was surprised to hear recently that Justice Ruth Bader
Ginsburg, when she graduated from law school, got a job in a
law firm as a secretary, couldn't get a job as a practicing
lawyer. So it is nice to see times changing.
Ms. Conti. Yes, it is, and we need to have more women
staying in the practice of law, practicing and achieving levels
of leadership.
Senator Specter. Mr. Conner, you have extensive litigation
experience which should stand you in good stead. Any ideas
about how to speed up the civil docket?
Mr. Conner. Things are working reasonably well in the
Middle District. In terms of speeding up the civil docket
there, I think if I were to follow the orders, scheduling
orders that are currently in place among the members of the
bench, I would be well served.
In terms of overall prompt disposition of cases, I concur
in the statement that justice delayed is justice denied, and I
would try to move those matters before me as quickly as I
could, giving deference to the parties and their rights to
litigate their case.
Senator Specter. Any thoughts on the limitation of
discovery, such as excessive interrogatories?
Mr. Conner. There are some limitations by local rule in the
Middle District and I would follow those limitations. I think
that the Federal judiciary has gotten some excellent--has
undergone some excellent changes in connection with Rule 26 and
the mandatory disclosures under Rule 26, and I think maybe to
the extent that could be expanded that would be terrific.
Senator Specter. Mr. Jones, how long did you practice as a
sole practitioner?
Mr. Jones. I practiced as a solo practitioner, Senator,
from 1986 to just 2 years ago, when I took on an associate.
Senator Specter. How did you handle all of the complexities
of the modern law?
Mr. Jones. You commented in your introduction that I am a
somewhat--I am not sure that you used this word, but I am an
anachronism as a solo practitioner and in a small firm. But it
is difficult and you have to know your limitations and you have
to be dedicated, and it entails that you go into your office at
very early hours and you stay late hours and you work
Saturdays. But it has been a very rewarding life for me.
I have been a--I describe myself frequently as a country
lawyer and I mean that in the best possible sense, but it has
given me broad experience in so many different areas.
Senator Specter. To what extent do you think your
experience as Chairman of the Pennsylvania Liquor Control Board
will assist you in judicial functions?
Mr. Jones. Well, it is a quasi-judicial function in the
sense that I have dealt with complex cases and numerous cases.
As I have frequently said to people, I came from being the
aforesaid country lawyer to Harrisburg 7 years ago and was
given the reins to a 4,000-person, billion-dollar State agency.
And there was no manual left on my desk from my predecessor on
how to run that and I hope that I have distinguished myself in
that job.
I think that more than anything else, it gives you the
opportunity to have a structure and an order, and to set a
style that I would to as a trial judge, and bring the skills
that hopefully are portable in organizing things to bear on the
Federal court.
Senator Specter. Mr. Jones, I know the people in the
Williamsport area will be glad to know that you will be sitting
in Williamsport. I believe that the different locations for the
Federal court is a very, very important item.
During my tenure in the Senate, I took the lead in
establishing new stations in Lancaster, and also in Johnstown.
We have stations in Allentown and Easton as well, and, of
course, courthouses, in addition to Pittsburgh and
Philadelphia, in Erie, Harrisburg, Scranton, and Wilkes-Barre.
The station in Williamsport has been in existence for a
long time, and Judge Muir is 86 years old, as I understand it.
I know that you and Judge Vanaskie, the Chief Judge of the
Middle District, have worked out an arrangement where your
chambers will be in Williamsport and you will be committed to
sitting in Williamsport.
Mr. Jones. That is correct, Senator, and if I am fortunate
enough to be confirmed, I will be able to call on the wisdom of
Senior Judge Muir and Senior Judge McClure, whom I will be
replacing, although, of course, as a senior judge he is going
to continue to work. So I am glad to help and I feel so
fortunate to be nominated for this position and, if confirmed,
I will happily take my place in upstate Pennsylvania.
Senator Specter. Well, Judge McClure was recommended, I
think, by Senator Heinz and myself some time ago because we
wanted to be sure Williamsport--Judge McClure, I think, comes
from Union County?
Mr. Jones. He does. That is exactly correct.
Senator Specter. So the people will know, you come from
Schuylkill County, from Pottsville, the home of John O'Hara, a
very famous Pennsylvania town. Senator Santorum and I have been
very careful to disperse the judicial selections as much as we
can. There is, candidly, a little over-balance in the big
cities, but we are trying to disperse as much as possible.
In the competition, there were some very able people from
Williamsport who aspired to be Federal judges and who may yet
be. But Pottsville is not too far from Williamsport and in
making the recommendation to the President which Senator
Santorum and I did on you, after your approval by the
bipartisan nominating commission, it was with the expectation
that you would sit in Williamsport. I am glad to hear that
Judge Vanaskie and you have worked that out and that you are
committed to doing that.
Mr. Jones. Yes, sir, we are, Senator. I have had great help
from Judge Vanaskie, Chief Judge Vanaskie, I might say. And as
I said, if I am fortunate enough to be confirmed, it appears to
me to be a great court and one which I would be proud to serve
on in Williamsport.
Senator Specter. Thank you very much. I look forward to all
of you serving. I think you will be very fine judges.
Madam Chairwoman, I have decided not to read Senator
Hatch's lengthy statement, but just would like unanimous
consent that it be inserted into the record.
Senator Cantwell. Without objection.
I have one last question for actually all of you, a panel
question. Some of our most beloved judges in history have been
judges who made decisions that were against popular sentiment,
or stood up to protect the rights of minorities or people's
whose views made them outcasts.
Can you tell me of an instance in your career where you
have stood up, took an unpopular stand, or fought for
something, maybe a client, and how you stood up to those
pressures?
Mr. Conner. Madam Chair, the first thing that comes to my
mind is a case that I am currently involved in in Lancaster
County. I represent a group of hoteliers who are challenging a
hotel tax that has been imposed by Lancaster County, in part to
support a convention center that is proposed in Lancaster
County.
One of the parties which is interested in that convention
center is the Lancaster newspapers, which is a partner in the
hotel that is going to be built next to the convention center.
So I have been taking a stance on behalf of my clients, the
hoteliers, which has been unpopular locally for those who would
like to see the convention center built. That case is currently
pending before the Pennsylvania Supreme Court.
Senator Cantwell. Mr. Jones or Ms. Conti?
Mr. Jones. I served for 10 years, Madam Chairwoman, as an
assistant public defender in Schuylkill County, and so very
frequently I found myself enmeshed in unpopular areas
representing unpopular people. In particular, in 1989, I
represented an individual who was alleged to have murdered a
12-year-old boy.
It was, as you can imagine, coming from a small town, a
highly charged atmosphere. We had a week-long trial. I
represented him throughout in a most difficult circumstance,
with the community at large very much against him. He was
convicted. I was able to keep him from suffering the death
penalty in that case.
But I learned perhaps more than anything else that I ever
did as an attorney about the obligation that we have as
attorneys to take on occasionally unpopular cases, and that at
that time was the most unpopular case that I could possibly
have chosen to have undertaken. And so that stands out amongst
all the cases that I ever handled, or matters that I have
handled as the most unpopular, but I was very proud to do that
as an assistant public defender consistent with my obligations
as an attorney.
Senator Cantwell. Ms. Conti?
Ms. Conti. I have had a career-long commitment to equal
justice that includes justice for the poor, and throughout my
career, in addition to doing pro bono work, I was active in the
bar association with respect to protecting the rights of the
poor in terms of access to justice.
I can recall earlier in my career debating and bringing
forth before the House of Delegates of the Pennsylvania Bar
Association resolutions to enhance statutory protections for
indigents in connection with landlord-tenant disputes. And I
think the quality of the debate on the floor of the House of
Delegates--the fact that we did move those proceedings forward
in terms of providing in Pennsylvania additional protections
for indigents in those circumstances is something that comes to
my mind as a contribution to equal justice.
Senator Cantwell. Thank you.
Senator Specter, any more questions from you?
Senator Specter. No. Thank you very much.
Senator Cantwell. We will keep the record open for a week
for any of our colleagues who want to submit questions and have
you answer them. We appreciate your time this afternoon and
your answers to our questions, and appreciate again the large
crowd that is here to accompany all of you today.
With that, the Senate Judiciary Committee is adjourned.
[The biographical information of Mr. Conner, Ms. Conti, and
Mr. Jones follow:]
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[Whereupon, at 3:15 p.m., the committee was adjourned.]
A submission for the record follows.]
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NOMINATION OF LAVENSKI R. SMITH, NOMINEE TO BE CIRCUIT JUDGE FOR THE
EIGHTH CIRCUIT; HENRY E. AUTREY, NOMINEE TO BE DISTRICT JUDGE FOR THE
EASTERN DISTRICT OF MISSOURI; RICHARD E. DORR, NOMINEE TO BE DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF MISSOURI; HENRY E. HUDSON, NOMINEE TO
BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA; AMY J. ST. EVE,
NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS; AND
TIMOTHY J SAVAGE, NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT
OF PENNSYLVANIA
----------
THURSDAY, MAY 23, 2002
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, Pursuant to notice, at 2:08 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Durbin, Specter, and Sessions.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. I want to welcome everybody here. The
nominees before us come from Arkansas, Missouri, Virginia,
Pennsylvania, Illinois, and I know a number of the nominees'
families have made the journey with them, and I extend the
welcome to them.
With today's hearing, in just about 10 months, the Senate
Judiciary Committee will have held 19 hearings involving a
total of 71 judicial nominations--in fact, the only judicial
hearings held by this Congress. Control, of course, was in the
other party the first 6 months. That is more hearings,
actually, on judges than my friends on the other side held in
any year of their control of the Senate. In fact, it is more
hearings than they held in 1996 and 1997 combined and includes
more judicial nominees than were accorded hearings in 1999 and
2000. I just thought I would point that out because of some of
the misinformation that has been floating around, certainly not
by any of those who are going to testify today, but it has
happened.
Indeed, actually, one-sixth of President Clinton's judicial
nominees--more than 50--never got a committee hearing and
committee vote when the committee was under other control.
One of these vacancies was on the Eighth Circuit, a vacancy
recently filled by Michael Melloy of Iowa. That was the seat to
which President Clinton nominated Bonnie Campbell, a talented,
well-qualified candidate who did get a hearing but was never
allowed to come up for a vote, and it was finally returned.
Now, since the change in control of the Judiciary
Committee, even though, as I said, while there were some
nominees the first 6 months of last year, no hearings were
held, but we started ours--noticed the first one of our
hearings 10 minutes after I became chairman. We moved quickly
to fill vacancies on the Eighth Circuit. We have already
confirmed two judges to this circuit: William Riley from
Nebraska and Judge Melloy from Iowa. I was determined not to do
to President Bush what the other party had done to President
Clinton.
The nominations to the district courts today deserve
mention. I am pleased to be able to move so many of these in a
hurry. In fact, as soon as the senior Senator from Virginia, a
well-respected man, a close personal friend, came to me to ask
me to schedule Judge Hudson for a hearing--I actually have to
admit I didn't realize his name was here, but as soon as
Senator Warner mentioned him, I was happy to accommodate him.
In fact, the ink on the paperwork on the other trial court
nominees before us this afternoon is practically still wet. Mr.
Savage's file was completed about 9 days ago; Mr. Dorr's, 6
days ago; Ms. St. Eve's, 3 days ago; Judge Autrey's, 2 days
ago.
I almost shouldn't mention that, 5, 3, 6 days, because
somebody is going to say, well, why didn't we do them on that
day?
While some of the vacancies to which these nominees have
been named arose relatively recently, the vacant seat in the
Eastern District of Pennsylvania to which Mr. Savage has been
nominated has been empty since the beginning of 1999. Now,
President Clinton did nominate somebody for that, who waited
there for a couple years, did not come before this committee in
9 days the way Mr. Savage has. But he had to wait quite a bit,
never got a hearing, which turned into a benefit for Mr.
Savage.
As of today's hearing, this Judiciary Committee will have
held hearings for seven nominees to judgeships in Pennsylvania,
including Judge Legrome Davis, Judge Michael Baylson, and Judge
Cynthia Rufe, who were all confirmed last month, and we are
already through another one, on a split vote but a comfortable
margin, from Pennsylvania this morning----
Senator Specter. Are you referring to Judge Smith?
Chairman Leahy. Yes. I just mention this because we did
have--I do recall when at least one person from Pennsylvania
apparently wanted to hold up Judge Legrome Davis and did for
years. We are moving through a lot quicker.
The vacancy to which Judge Autrey has been nominated has
been vacant even longer, since December 1996, when the late
Judge Gunn took senior status. President Clinton nominated
Missouri Supreme Court Judge Ronnie White to this vacancy in
June 1997. He had to wait nearly a year for a hearing. We then
voted to send his nomination to the Senate floor, but then his
nomination waited for a full Senate vote, never got one, was
sent back to the President. He renominated him. Again he waited
patiently a long time for a vote, and he was given a floor
vote, and even though a number of Republican colleagues had
voted for him in committee, by an unprecedented--and it was
unprecedented--party line vote on the floor, it was voted down.
I just mention that to show that we are trying to move
these a lot quicker. So I would like to especially commend
Senator Carnahan for being here today to recommend the Missouri
nominees to the committee. That just underscores for us what we
all know about her, that she is a person of character and
grace, willing to work on a bipartisan basis in the best
interests of the State of Missouri, and is here to support
President Bush's nominee.
So I am glad we are able to hold today's hearing. I wish we
could have held hearings on the 50 of President Clinton's that
they refused to hold hearings on. In fact, 56 percent of
President Clinton's courts of appeals nominees in 1999 and 2000
never got a hearing or a vote. In 1996, as I recall, there
wasn't a single court of appeals judge that was allowed to have
a vote.
From the time my friends on the other side took over
majority control of the Senate in 1995 until we reorganized
last July, circuit vacancies increased from 16 to 33, more than
doubling.
We have broken that. Nine nominees have been confirmed in
fewer than 10 months. Mr. Smith is the 14th nominee to a
circuit court to receive a hearing in just 10 months. In that
case, I want to commend Senator Lincoln for her efforts. I
appreciate your interest in ensuring that Mr. Smith be accorded
a hearing. I had reached the point where I was afraid to walk
on the Senate floor within Senator Lincoln grabbing me and
asking when we were going to have this hearing. And so that is
why we have moved forward in the same way, of course, that I
wanted to accommodate Senator Warner on his, as I have with
Senator Allen on other matters. But Judge Smith should thank
you for being here.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Leahy. What we will do, following the normal
procedure, we will hear from the two Senators who have a court
of appeals judge, and then we will hear from other Senators
according to seniority.
Senator Sessions. Mr. Chairman, I just----
Chairman Leahy. After your opening statement. I am sorry.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you very much. We are glad to have
this hearing today, a hearing with a number of judges on it,
and I think that that is a good pattern for us to follow.
Sometimes it is not just the number of hearings but the number
of judges that sit on that panel. And it is good that we have
had 57 nominees confirmed, but I have got to just respond to a
couple of things that you said, Mr. Chairman.
When President Clinton left office, there were only 41
nominees pending that he had nominated that had not been
confirmed. So I am not sure how this number saying only 56
percent or something got confirmed. And they were----
Chairman Leahy. Well, 56 percent did not get confirmed.
Senator Sessions. Well, we only voted down one nominee in
the entire time President Clinton was in office. We confirmed
377. There were 41 left pending that he had nominated in the
last year that didn't get confirmed. There were only 67--there
were 67 vacancies. That is when the Republicans controlled this
committee and when a Democrat was in the White House.
Now, when Senator Hatch chaired the committee and President
Clinton was in the White House--well, when former President
Bush left office, there were not 41 nominees but 54 nominees
pending and unconfirmed, and there were 70 vacancies--70
vacancies when Senator Hatch took over, and when he finished
his term and President Clinton finished his term in office,
there were only 67 vacancies. He had reduced the number of
vacancies. We are now at about 90. We know that we have a real
slow time with our courts of appeal judges particularly. The
President has only gotten three of those confirmed, 27
percent----
Chairman Leahy. What number was Judge Smith this morning,
courts of appeals?
Senator Sessions. He hasn't been confirmed yet. And we had
a lot of these nominees that are yet to even have a hearing who
have been pending over a year. In fact, 8 of the first 11, I
believe, have not had a hearing.
So we are pleased to move forward today. I won't belabor
the point, but I would just make the point that we think this
is an alteration of the historic ground rules of moving judges,
and it is slower than we have a right to expect, and certainly
slower than was done under President Clinton.
Chairman Leahy. You know, I would totally agree with you if
I were working on those numbers. You said three courts of
appeals judges have been confirmed by us. Actually, we have
confirmed nine on the floor and 14 out of here. But as I said,
normally we would go to the----
Senator Sessions. You are right, Mr. Chairman. I read this
note over here wrong. Of the first 11 nominees----
Chairman Leahy. OK, don't feel badly----
Senator Sessions [continuing]. Only three were confirmed.
Chairman Leahy. Don't feel badly.
Senator Sessions. Of the first 11 nominees that have been
pending over a year, 3 only have been confirmed.
Senator Warner. Mr. Chairman, could I seek recognition for
10 seconds?
Chairman Leahy. Of course.
PRESENTATION OF HENRY E. HUDSON, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF VIRGINIA BY HON. JOHN WARNER, A
U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Warner. I am one of the Senators who invited the
FBI Director to appear before the Senate, and I now must attend
that briefing. Could I just submit my statement, and that would
enable the panel to go forward more speedily.
Chairman Leahy. You know, there is a reason why I have such
enormous respect for you and think of you as one of the real
giants of the Senate, Senator Warner.
Senator Warner. Thank you. We have served here a quarter of
a century together, and there is no Senator--I will say this
publicly--that is more conscientious about personal
relationships than you, and I thank you.
Chairman Leahy. I thank you.
Senator Warner. And I so submit my statement because I have
100 percent confidence in this candidate, and if you lack a
little confidence in my statement, we have here a handwritten
letter by Congressman Moran and from Richard Saslaw, the Senate
Democratic Minority leader in Virginia. I also submit a letter
from the Virginia Bar Association on Mr. Hudson's behalf.
Chairman Leahy. Thank you.
Senator Warner. I rest my case, Mr. Chairman.
[Laughter.]
Chairman Leahy. You are doing pretty good.
[The prepared statement of Senator Warner appears as a
submission for the record.]
Chairman Leahy. I was going to say that our normal
procedure is to go to the courts of appeals, except for the
one--and I should tell Mr. Hudson that he says those nice
things about you when you are not around, too. The one
exception to that is if there are members of the committee,
which would be Senator Specter and Senator Durbin.
PRESENTATION OF TIMOTHY J. SAVAGE, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF PENNSYLVANIA BY HON. ARLEN SPECTER,
A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Specter. Well, thank you very much, Mr. Chairman. I
shall be brief.
As Senator Warner noted, the FBI Director is going to be in
S-407 in 9 minutes, and that is a very heavy Judiciary
Committee oversight issue, and I am going to excuse myself
early to go.
Chairman Leahy. And I would note that the senior Senator
from Pennsylvania has been one of the strongest of either party
is making sure that FBI oversight is held. I mean that
seriously.
Senator Specter. I want to make just a few comments about a
very distinguished Pennsylvanian who is up for confirmation
today, Timothy Savage. He has his bachelor's degree from
Assumption College in 1968 cum laude; Temple University Law
School, 1971. He has some 30 years' experience as a hearing
examiner for the Pennsylvania Liquor Control Board, which is a
judicial position. He is permitted to practice privately, which
he has, and has very extensive experience on both the civil and
criminal docket, having tried more than 100 criminal cases to
verdict. More recently, most of his practice has been in the
civil field.
He has extensive community activities, as counsel, Board of
Directors for the Metropolitan (Northeast) Philadelphia Boys &
Girls Clubs, and in an unusual qualification--and I think it is
a qualification--is a Democratic Philadelphia County Executive
Committee and an elected Democratic leader of the Philadelphia
23rd Ward. And that provides a lot of very grass-roots
experience.
Mr. Savage is a product of an arrangement which Senator
Santorum and I have worked out so that the President's party
has three nominees for every one nominee of the party which is
out. This is a practice which we started some time ago and I
think is very, very important, and one time in a 24-year
period, 20 years were controlled by one party and many lawyers
of the other side did not have an opportunity. And I think this
gives us some balance. And to President Bush's credit, he has
honored that commitment carte blanche even though Mr. Savage
has been an active worker in the field and was against the
President. So it is a tribute to the President and it is also a
tribute to Mr. Savage.
I would stay and await his questioning, but he is not going
to have any problem with his experience at the trial bar.
Thank you very much, Mr. Chairman.
Chairman Leahy. I would much prefer that you ask the
questions at the meeting you are going to, because I suspect
they are some of the same ones that you and I have shared
before.
Senator Specter. I will oblige you, Mr. Chairman.
Chairman Leahy. And I would like to talk to you when you
get back. Thank you.
Senator Durbin?
PRESENTATION OF AMY ST. EVE, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF ILLINOIS BY HON. RICHARD DURBIN, A
U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Durbin. Mr. Chairman, I am pleased to be here today
to support the nomination of Amy St. Eve to the U.S. District
Court of the Northern District of Illinois. I have a lengthy
statement here, which I would like to be put in the record.
[The prepared statement of Senator Durbin appears as a
submission for the record.]
Senator Durbin. I don't know if it is appropriate, Mr.
Chairman, but I would yield my time at this point to Senator
Fitzgerald who actually--oh, is he still here? He left? OK.
Then I will make a statement, and I will make it very briefly.
I would like to--he has just returned. Is it appropriate
for me to yield to Senator Fitzgerald, who actually nominated
Ms. St. Eve?
Chairman Leahy. Of course. These younger Senators can move
so fast.
[Laughter.]
Chairman Leahy. I was 34 when I arrived here. I remember
those days. Go ahead.
PRESENTATION OF AMY ST. EVE, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF ILLINOIS BY HON. PETER FITZGERALD, A
U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Fitzgerald. Well, Mr. Chairman, thank you very
much, and, Senator Durbin, my colleague from Illinois, I
appreciate you yielding your time to me to introduce a nominee
to the United States District Court for the Northern District
of Illinois. I am very pleased to present to the Senate
Judiciary Committee Ms. Amy St. Eve. Ms. St. Eve is very young
herself. She is 36. But I think when you hear of her
achievements and accomplishments thus far, you will agree with
Senator Durbin and me that she makes an outstanding candidate
for the Federal district court.
Ms. St. Eve is from Belleville, Illinois. She graduated as
valedictorian in her class at Belleville High School. She went
to Cornell undergraduate and law school at Cornell Law School.
She was Order of Coif, an articles editor on the Cornell Law
Review. She received the Boardman Third Year Law Prize. She was
No. 1 in her class rank after her second year in law school.
And she received numerous other awards while she was at Cornell
Law.
She began her career at Davis, Polk & Wardwell in New York
where she practiced corporate law in civil and criminal
matters. From 1994 to 1996, Ms. St. Eve was an associate
independent counsel for the Whitewater Independent Council in
Little Rock, Arkansas. She did secure, along with another
lawyer, the one successful prosecution in that Whitewater
investigation, and that was a prosecution of Governor Jim Guy
Tucker, Jim McDougal, and Susan McDougal for fraud.
From 1996 through 2001, Ms. St. Eve was an Assistant United
States Attorney in the Northern District of Illinois. She
handled bank fraud, health care fraud, narcotics trafficking,
public corruption, and gang violence cases.
From May 2001 through the present, Ms. St. Eve has served
as a senior counsel in litigation at Abbott Laboratories, which
is in the Chicago area. She has also taught trial advocacy at
Northwestern University School of Law. And it is with great
pleasure that I present to the committee Amy St. Eve and her
husband, Howard Chrisman, who is a physician at Northwestern
Memorial Hospital, and, Amy and Howard, if you would want to
stand? And they have with them their young son, Brett, who is 1
month old. He is their third child. They have Lauren, Emily,
and now Brett. Congratulations to all of you. Thank you.
[Applause.]
Chairman Leahy. The family archives will show the 1-month-
old was here, just in case he doesn't remember.
Senator Fitzgerald. And just in concluding, during the
process in which I was searching for a candidate and we were
reviewing Ms. St. Eve's references, I believe my office talked
to one judge who was very impressed that she had tried a case
while she was maybe in her eighth month of pregnancy. So she
has a lot of stamina and has done a wonderful job balancing
family and career, and I am very pleased to present Amy St. Eve
to the committee, and I appreciate the chairman and the
committee members' time.
Thank you very much, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Durbin, did you want to add anything?
Senator Durbin. No, that is all right.
Chairman Leahy. OK. Then we will go to--again, going back
to the court of appeals, I appreciate the courtesy of both
Senator Hutchinson, who is a strong supporter of this nominee,
and Senator Lincoln.
Senator Hutchinson, go ahead, sir.
PRESENTATION OF LAVENSKI R. SMITH, NOMINEE TO BE CIRCUIT JUDGE
FOR THE EIGHTH CIRCUIT BY HON. TIM HUTCHINSON, A U.S. SENATOR
FROM THE STATE OF ARKANSAS
Senator Hutchinson. Thank you, Mr. Chairman. I am delighted
to be here. Thank you for calling the hearing and thank you for
the opportunity to introduce Lavenski Smith, the nominee for
the Eighth Circuit Court of Appeals. I would also like to
introduce his family. His wife, Trendle, is here, and his
children, Stacia and Gabriel. They are right back here on this
front row.
Chairman Leahy. Thank you. And, of course, each nominee
will get a chance to put that in further in the record. But I
do have to think that nominees someday somebody goes into the
old family archives, and it is kind of neat to find who was
there.
Senator Hutchinson. Absolutely.
Chairman Leahy. Go ahead.
Senator Hutchinson. Mr. Chairman, Arkansas does not get the
chance to fill a court of appeals seat very often. In fact, the
last time an Arkansan was placed on this bench was 10 years
ago, in 1992. That is one of the many reasons that this
particular nomination is so important.
As someone from Arkansas, I want you to know that those of
us who know Lavenski Smith best feel that President Bush made
an excellent choice.
As I briefly outline Justice Smith's background and
qualifications for the bench, I hope the members of the
committee will note the recurring theme of service. Be it
public service as a government official, service to his
community through aid and religious organizations, or service
to the bar as a public interest lawyer, Lavenski Smith has made
service the guiding light in his life. Justice Smith earned
both his bachelor's degree and his law degree from the
University of Arkansas in Fayetteville. In fact, Mr. Chairman,
he put himself through law school by working as a janitor.
Following law school and 3 years clerking in private
practice, Judge Smith served the poorest citizens of Arkansas
as the staff attorney for the Ozark Legal Services representing
abused and neglected children. After working with the Ozark
Legal Services, Judge Smith opened the first minority-owned
firm in Springdale, Arkansas, handling primarily civil cases.
He then taught business law at John Brown University and took
several positions in public service, including regulatory
liaison for the Governor's office. Currently, Judge Smith is
serving as the commissioner of the Arkansas Public Service
Commission.
In 1999, he was appointed to the Arkansas Supreme Court for
2 years. As a Supreme Court Justice, he presided over hundreds
of cases and authored several dozen majority opinions.
Throughout his work as an attorney and a judge, Lavenski
Smith has earned the respect and admiration of his colleagues.
Among those who have publicly expressed their support, the
Chief Justice of the Arkansas Supreme Court, W. H. ``Dub''
Arnold, who said of his former colleague, ``He'll make a great
Federal judge. I think President Bush made the best possible
nomination he could have made.'' And his colleague at the Ozark
Legal Services, Mona Teague, states, ``We hated to see him
go.''
Another strong supporter is Mr. Dale Charles, the president
of the Arkansas NAACP, who has spoken out publicly supporting
this nomination and written to you, Mr. Chairman, to express
his support.
In June of 2001, the American Bar Association reviewed
Justice Smith's qualifications and made a unanimous qualified
determination. Justice Smith has received broad support from
colleagues on the bench, colleagues from his days of practicing
law, the American Bar Association, and the Arkansas editorial
writers.
Finally, I want to point out that Justice Smith will bring
more than just his obvious legal qualifications to the Eighth
Circuit Court of Appeals. He will bring a long history of
community service to the bench. He has served on the board of
Northwest Arkansas Christian Justice center, a nonprofit
organization dedicated to providing mediation and conciliation
services. He worked with Partners for Family Training, a group
that recruits and trains foster parents. And Justice Smith has
raised funds for the School of Hope, a school for handicapped
children in his hometown of Hope, Arkansas.
Mr. Chairman, this outstanding record of service is the
most outwardly visible sign of something people in Arkansas
know well. Lavenski Smith is a good and honorable man who will
serve his country well, and he is someone I am proud to call my
friend.
I appreciate very much Senator Lincoln's strong support for
this nomination. I think the President has nominated the right
person for this job, and as you hear his testimony here today,
I am confident the committee will agree.
Thank you, Mr. Chairman.
Chairman Leahy. Well, you have been, again, very strong in
your private comments as well as your public comments, and I
appreciate that.
Senator Lincoln, we have the nominee here, so go ahead.
PRESENTATION OF LAVENSKI R. SMITH, NOMINEE TO BE CIRCUIT JUDGE
FOR THE EIGHTH CIRCUIT BY HON. BLANCHE LINCOLN, A U.S. SENATOR
FROM THE STATE OF ARKANSAS
Senator Lincoln. Thank you, Mr. Chairman. I am telling you,
that good old female patience and perseverance pays off. I am
wondering if my colleagues are going to put up with me much
longer, however.
I do appreciate you and the members of the Judiciary
Committee providing us the opportunity to appear before you
today to introduce Judge Lavenski Smith, who has been nominated
to fill a vacancy on the Eighth Circuit Court of Appeals. He is
joined, obviously, as Senator Hutchinson mentioned, by his
wife, Trendle, and their son and daughter, and as always, we
are so pleased that the entire family could be here.
I want to begin my remarks today by offering a very special
word of thanks to you, Chairman Leahy, for convening this
hearing today. I have been somewhat of a pest, and I appreciate
very much your paying attention. I want to acknowledge the
chairman's diligent efforts over the past 10 months to reduce
the number of judicial vacancies that were largely created
before the Senate reorganized in June of last year.
Even though there has been a good deal of heated debate
surrounding the pace of judicial confirmations in recent
months, I can say from personal experience that the chairman
has been highly responsive to my inquiries in this matter.
In short, I am grateful to him for granting my request that
Judge Smith receive a hearing so that he can present his
qualifications to this committee for consideration.
To the committee and the chairman, Lavenski Smith is a
lifelong resident of Arkansas. After graduating from high
school, Judge Smith moved north to Fayetteville where he
received both his B.A. and J.D. from the University of
Arkansas, as Senator Hutchinson has mentioned. And I will try
hard not to be duplicative of what my senior colleague from
Arkansas has mentioned, but it is also important.
Since that time, Judge Smith has enjoyed a very impressive
career as a practicing attorney, as a State Supreme Court
Judge, as a professor, and most recently, as a member of the
Arkansas Public Service Commission.
This would be an impressive list of accomplishments for
anyone, but at age 43, Judge Smith's record is a good
indication that he has many years of very productive service in
his future. Since President Bush announced the appointment of
Judge Smith last year, I have heard from dozens of Arkansans
from across the political spectrum who support his nomination.
Since, Mr. Chairman, I am not a lawyer and I do tend to
turn to the legal community for their recommendations, my
support for Judge Smith's nomination is based in large part on
the enthusiastic endorsement he has received from those who
know him best, his colleagues and friends who have firsthand
knowledge of his professional and personal attributes.
Those who have indicated strong support for Judge Smith in
Arkansas, as Senator Hutchinson mentioned, include Governor
Mike Huckabee, the Arkansas Supreme Court Chief Justice ``Dub''
Arnold, and the Arkansas NAACP President Dale Charles, all of
which I have heard from on more than one occasion.
In addition, I believe it is important to note that Judge
Smith received a unanimous qualification rating for his
position by the ABA Standing Committee on the Federal
Judiciary.
Even though Judge Smith and I may not agree on every issue,
that is not the test that I apply to determine an individual's
fitness for the Federal judiciary. I evaluate judicial nominees
based on their skills, experience, and ability to understand
and apply established precedent, not on any particular point of
view a nominee may hold.
Fundamentally, I am interested in knowing that a nominee
can fulfill his responsibility under the Constitution in a
court of law and implement the rule of law of this great
Nation. I am satisfied that Judge Smith has really met that
standard.
In closing, Mr. Chairman, I highly value the role the
Judiciary Committee plays in evaluating and screening lifetime
judicial candidates. Like you, I do not believe the Senate's
constitutional role of providing advice and consent on judicial
nominations should ever be interpreted to mean advice and
rubber stamp. If so, the exercise that we are engaging in today
is meaningless.
In accordance with those principles, I ask my colleagues on
the Judiciary Committee to give Judge Smith your full attention
and your careful consideration in the following hearing.
I thank you, especially, Mr. Chairman, for all your
accommodations and certainly the wonderful working relationship
we share in the Senate.
Chairman Leahy. Thank you very much, and I know both you,
Senator Hutchinson, and you, Senator Lincoln, are supposed to
be in about three different committee meetings right now. So
please feel free to leave, and I do appreciate your coming. I
do appreciate your time, and I do appreciate your consistent
support for this nominee.
Senator Lincoln. Thank you, Mr. Chairman.
Senator Hutchinson. Thank you, Mr. Chairman.
Chairman Leahy. Again, now going back on the seniority
rule, we will go to Senator Bond and Senator Santorum, then
Senator Allen, Senator Carnahan, and Congressman Clay. So,
Senator Bond, you are no stranger to this committee. You have
been here a number of times before. Please go ahead, sir.
PRESENTATION OF HENRY E. AUTREY, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF MISSOURI, AND RICHARD E. DORR,
NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF
MISSOURI BY HON. KIT BOND, A U.S. SENATOR FROM THE STATE OF
MISSOURI
Senator Bond. Thank you very much, Mr. Chairman, and thank
you for calling the hearing, and we do appreciate the fact that
there is the confidential briefing and many other things going
on. But we are most grateful that you are taking the time today
to hear two exceptional candidates for the Federal district
court is Missouri: the Honorable Henry Autrey for the Eastern
District of Missouri and Richard E. Dorr for the Western
District.
I believe the committee will find that each of these two
gentlemen are extremely well qualified for the position,
possess the experience, the intellect, and the personal
qualities necessary to preside over trials and rule in an
informed and impartial manner. The administration of justice in
Missouri will be enhanced by the presence of both of these men
on the Federal bench.
Judge Autrey will bring to the bench an outstanding
reputation and extensive experience as both a judge and a
prosecutor. Upon graduation from law school at the St. Louis
University School of Law, Judge Autrey took a job as a
prosecutor in the city of St. Louis, a profession I know the
chairman holds in very high regard. Judge Autrey served as a
prosecutor for 9 years. In addition to running the office for a
time as its first assistant, he established the office's Child
Abuse Unit and prosecuted abuse and neglect cases. As a
prosecutor, Judge Autrey tried over 60 felony cases, including
homicides, and won a number of high-profile convictions.
After serving as a prosecutor for 9 years, Judge Autrey was
appointed associate circuit judge by then-Governor Ashcroft,
presiding over civil and criminal cases. Judge Autrey was later
promoted to circuit judge of the city of St. Louis by then-
Governor Mel Carnahan. Over his career on the bench, Henry
Autrey has earned a reputation as fair, approachable,
thoughtful, and a hard-working judge.
While conducting extensive due diligence in finding a
candidate to recommend to President Bush, I spoke with a number
of attorneys in the St. Louis legal community who know or have
appeared before Judge Autrey. Their praise was as effusive as
it was abundant. He is regarded as a very impartial judge who
has the temperament and the work ethic for this important post.
In fact, I encountered no one who had anything but positive
things to say about Judge Autrey.
As evidence, in his last retention vote, over 90 percent of
the attorneys in his jurisdiction voted to keep him on the
bench under our Missouri non-partisan court plan.
In addition to his work on the bench, he has been active
around the St. Louis area. His activities range from teaching
numerous courses at St. Louis University School of Law to
serving on the board of the St. Louis Food Bank, becoming
active in city revitalization, to frustrating a purse snatcher.
He is also married, has two fine children, lives in the city of
St. Louis.
Dick Dorr also brings to this position an outstanding
reputation as a trial attorney from his legal practice in
Springfield, Missouri. Dick is a highly respected lawyer in
Springfield and currently a partner with the law firm of
Blackwell, Sanders, Peper & Martin. He has extensive experience
as a trial attorney. While he currently concentrates in the
area of commercial litigation, he has represented clients in
both civil and criminal matters. He has appeared in the State,
Federal, and appellate court and has done so throughout his
career of more than 30 years.
Attorneys in Springfield who know and have practiced with
Dick share my belief that he has the experience to preside over
fair and efficient trials, and his presence on the bench will
be a tremendous benefit to the bench and improve the
administration of justice in the Western District of Missouri.
Dick has spent most of his adult life in Springfield,
Missouri, but he was born and raised in Jefferson City. He
attended and played football on scholarship at the University
of Illinois. My guess is that he is probably the only person
appearing before the committee today who played in the Rose
Bowl. Following college, he came back to Missouri to attend the
University of Missouri School of Law. He has practiced law in
both private practice and in the United States Air Force as
judge advocate.
Over the years, Dick has remained active in the Springfield
community. His work was cited to me frequently, and he has
earned the regard of many of Springfield's citizens for his
involvement. He has worked as an instructor at Southwest
Missouri State University in Springfield, served on the board
of a number of organizations, and given countless hours of
volunteer work. He has worked for Missouri Bar's Volunteer
Lawyer Program. He was instrumental in starting the Legal Aid
Society of Southwest Missouri and served on its board. He has
received the Equal Access to Justice Award from the Springfield
Bar for his work and was recognized for outstanding service to
the community by the Greene County Community Justice
Association.
As a judge advocate, he received two awards for meritorious
service. Dick has been a reservist in the United States Air
Force. He is married to Barbara, and they have one son.
I thank the committee and urge with my highest
recommendation their favorable consideration.
Chairman Leahy. Well, thank you very much, and I also
know--I have seen your schedule for the afternoon. I know you
are probably going to have to leave. I appreciate your being
here.
Senator Santorum is no stranger to this committee, because
I think this is either the sixth or seventh Pennsylvania judge
we have had before this committee--seventh, I believe it is,
since I became chairman. And so I am delighted to have you
here. Please go ahead.
PRESENTATION OF TIMONTHY J. SAVAGE, NOMINEE TO BE DISTRICT
JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA BY HON. RICK
SANTORUM, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Santorum. Thank you, Mr. Chairman. Mr. Chairman, I
also want to thank you for the executive meeting this morning
on Judge Smith, and I want to thank the committee for its
favorable recommendation. In particular, I want to thank
Senators Biden, Edwards, and Kohl for their support of Judge
Smith and his nomination.
The nomination that we have here today is of Timothy
Savage, and as Senator Specter commented to the committee,
Senator Specter and I have worked out an arrangement under the
prior administration and have kept it under this
administration, even though there are two Republican Senators
and a Republican President, that we would keep a ratio of three
of the President's party and one of the opposing party of the
President in our judicial selections.
We have had 11 nominations that have been sent to this
committee for the district court, and of those 11, 3 of the
11--actually, a little better than 3 to 1 have been Democrats:
Judge Davis, who has been moved out of this committee today;
Tim Savage; and yet to be considered by the committee, Judge
Dave Circone from the Pittsburgh area, who is also a Democrat
elected official.
We believe very strongly in a bipartisan approach to this,
and Senator Specter laid out how we did that. I also would
suggest that one of the things that I feel very strongly about
is that when there is a Democrat to be nominated from the
Commonwealth of Pennsylvania, the Democratic political leaders
in our Commonwealth should have the say as to who those
nominees are. And I have worked very closely with Congressman
Brady--I was going to say nice things in your absence, and I
will say them in your presence. I have worked very closely with
Congressman Brady, who is obviously a Congressman from the 1st
District in Pennsylvania, but also is the chairman for the city
of Philadelphia, the Democratic chairman. And this is a nominee
that I know Congressman Brady as well as Congressman Fattah
very, very strongly support and highly recommended him to us.
And so as is our practice, we have deferred to Democrats
within the State to select the nominees both under the Clinton
administration as well as under this administration, and we
will continue that practice as we try to work together in
concert as a delegation.
I am very pleased that they did nominate Tim Savage, who
has an excellent reputation, has experience, as Senator Specter
suggested, judicial experience, trial attorney experience,
private practice experience, and--not a negative in my mind--
political experience, someone who has a very balanced career,
someone who will bring, I believe, great integrity to the bench
as well as a tremendous amount of skill. I won't go through his
resume because Senator Specter did so adequately. I would just
like to say that I strongly support his nomination, and I want
to welcome him to this committee and introduce him to the
committee, as well as his wife, Linda, for being here today,
and I look forward to the committee acting favorably on his
nomination and hopefully moving it quickly to the floor of the
Senate.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much, Senator Santorum.
We will go next, before we go to Congressman Brady and
Congressman Clay, to the Commonwealth of Virginia with Senator
Allen. Senator Allen has been very, very helpful to this
committee because he also has the perspective that some of our
Senate colleagues have of having been a former Governor, a
well-respected Governor, and as a result has had to think about
judicial appointments well before coming here. And I have
listened to him and relied on his advice since he came here,
and I appreciate the time that you have taken, Senator Allen,
to be here. Please go ahead, sir.
PRESENTATION OF HENRY E. HUDSON, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF VIRGINIA BY HON. GEORGE ALLEN, A
U.S. SENATOR FROM THE STATE OF VIRGINIA
Senator Allen. Thank you, Mr. Chairman, Senator Sessions.
Thank you all for having this hearing. And I appreciate your
kind words and your help on other judgeships and other matters
that are important for people's liberty, including one who was
incarcerated last year at this time in China. There are a lot
of things this committee----
Chairman Leahy. Incidentally, I admire your efforts on that
because your voice was one of conscience and your voice was a
steadfast and clear voice, and I appreciate that.
Senator Allen. Well, it helped a great deal to have your
leadership to assist us in that cause.
My colleague, the senior Senator from Virginia, whom I
learn from every day, I noticed how he came in, interrupted
your repartee here between the Senators and got to the briefing
with the FBI Director. Senator Warner and I, when we are
considering judges for the Eastern District of Virginia, which
is a very important district--it has many significant cases. It
has a rocket docket. They have the Moussaoui trial before it
right now. The John Walker Lindh trial is in the Eastern
District of Virginia in the Alexandria Division.
We interviewed many, many quality candidates and recognized
how important it was to find the very best individual to
promote to the President and present to the President for
nomination. And I am very pleased that you are having this
hearing. And, of course, I offer my support for the nomination
of Henry Hudson to the United States District Court for the
Eastern District of Virginia.
I have personally known Henry Hudson for several decades
now. He has a long and distinguished career. I think it is
great to see all the public service roles that he has played.
He is here with his wife, Tara, and son, Kevin, and Kevin
doesn't know this, but--well, I guess he does. Before Kevin was
around, Henry started as a fire fighter, then was a deputy
sheriff, and he has had a very long, distinguished career. In
fact, he was elected in 1979 as Commonwealth's attorney for
Arlington County, which, for a Republican, is no easy task,
and, in fact, did such an outstanding job of good quality, he
was re-elected by a large margin 4 years later.
In 1986, President Reagan selected him to serve as U.S.
Attorney for the Eastern District of Virginia. He is credited
with elevating the stature and visibility of that office with
such prosecutions as Operation Illwind, which restored
integrity to the field of defense procurement.
In 1992, Judge Hudson was appointed by President Bush to
serve as Director of the United States Marshals Service, and he
received outstanding awards and commendations there.
While I served as Governor, Mr. Chairman, as Governor you
make appointments, not just judges but to commissions on
matters that are important to the people of our Commonwealth
and States. I asked, and Henry fortunately agreed to serve as
chairman of the Criminal Justice Services Board while I served
as Governor. He also was a key member of my Governor's
Commission to Abolish Parole and Reform Sentencing. Later, I
selected him to be a key member of the Virginia Criminal
Sentencing Commission, and I can personally attest, due to his
performance in those tasks, that his dedication, his work
ethic, and integrity are just superb and his leadership is one
that is very much needed in those areas as well as then showing
what kind of a judge he would be, because since 1998 he has
been a circuit court judge in Fairfax County, Virginia. He has
that proven experience. Those who present themselves before the
bar have been able to judge the judge, and there is bipartisan
support. Democrats and Republicans, the evidence that Senator
Warner mentioned earlier, all think he is a very firm but fair
judge. That is what you would want.
And so you will find, Mr. Chairman, Senator Sessions, and
other members of the committee, as you do your examination, you
will find Judge Hudson to be calm, you will find him to be
steady, you will find as you inquire, as I always do, what is
your philosophy as a judge, that he has the proper
understanding of what is the right philosophy and what is the
proper role of a judge: to administer the law, interpret the
law fairly based on the facts of the case, not to create laws.
That is the role of the legislative in partnership with the
executive branch. He is a gentleman that you will find with
proven integrity, proven scholarship, proven judicial
experience and philosophy.
I again thank you for having this hearing and would hope
that you would move as quick as possible to fill this vacancy
with a gentleman that we all would be proud to call judge for
the Eastern District of Virginia.
Chairman Leahy. Well, thank you, Senator Allen. Of course,
what is not stated but is obvious, his two biggest attributes
are the strong support of you and Senator Warner. You are both
highly respected on both sides of the aisle, and if he did not
have your support, this committee would not be moving that
expeditiously. We are moving expeditiously, so I thank you.
Thank you for being.
Senator Allen. Mr. Chairman, if I may be excused, and I
will present the evidence of Senator Warner as well.
Chairman Leahy. Be on your way.
Senator Allen. Thank you.
Chairman Leahy. Senator Carnahan has worked--I believe I
can honestly say this--from the day she came here to lower the
level of partisanship and to try to make things work the way
they should, in the way that is best, not only for Missouri but
for the whole United States. And she has certainly done that in
the area of judgeships and appointments from the great State of
Missouri, and I am so glad that you are here, and I would like
to hear from you and then from Congressman Clay. And I
apologize. These openings are taking a little bit longer than
expected, but I do want to hear from both of you.
Please, Senator Carnahan?
PRESENTATION OF HENRY E. AUTREY, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF MISSOURI, AND RICHARD E. DORR,
NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF
MISSOURI BY HON. JEAN CARNAHAN, A U.S. SENATOR FROM THE STATE
OF MISSOURI
Senator Carnahan. Thank you, Mr. Chairman. I appreciate
this committee's steadfast effort to fill the existing
vacancies in the Federal judiciary. The committee has moved
expeditiously in scheduling today's hearing. I thank you for
that.
I am especially pleased to introduce to you two Missourians
that President Bush has nominated for positions on the United
States Federal District Court. Dick Dorr is a partner at the
Blackwell, Sanders law firm in Springfield, Missouri. Earlier
in his legal career, he served in the United States Air Force.
He has also demonstrated a strong commitment to the Springfield
Bar Association as well as the Legal Aid Society of Southwest
Missouri, and has been active in his church and community. Mr.
Dorr has been nominated to serve on the United States District
Court for the Western District of Missouri.
Judge Henry Autrey, who has been nominated for Missouri's
Eastern District, was appointed by my late husband, Governor
Carnahan, to serve as a Circuit Court Judge for the city of St.
Louis. This appointment followed many years of service as a
local prosecutor and a legal aid attorney. Judge Autrey has
also been active in the Missouri Bar and the Mound City Bar
Association in St. Louis.
Both nominees may take great pride in the President's
nomination and the committee's proceeding today. But I do not
want to let this occasion pass without acknowledging another
Missouri nominee who sought to serve on the Federal bench.
Ronnie White will remain a symbol of partisan mistreatment.
What happened to him still leaves many Missourians bitter about
this process. And while I believe the mistreatment of Ronnie
White deprived our Nation of a skilled jurist, we cannot let
our lingering feelings interfere with the fair treatment of
future nominees. The scheduling of this hearing today, Mr.
Chairman, demonstrates your commitment to the fair treatment of
these and all other judicial nominees that come before us.
Thank you very much.
Chairman Leahy. Thank you. Thank you very much, Senator
Carnahan, and thank you for the help you have given this
committee in moving forward on judges.
Chairman Leahy. Congressman Clay, we are always delighted
to have you come over on this side of the Hill, and please go
ahead, sir.
PRESENTATION OF HENRY E. AUTREY, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF MISSOURI BY HON. WILLIAM LACY CLAY,
A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MISSOURI
Representative Clay. Mr. Chairman, Senator Sessions, thank
you for allowing me this opportunity to come before you today
to offer my unequivocal support for the nomination of Judge
Henry E. Autrey to the U.S. District Court for the Eastern
District of Missouri.
Judge Autrey is an excellent choice for the U.S. district
court as he brings many significant personal and professional
attributes to the Federal bench.
For the last 16 years, Judge Autrey has served with
distinction on the bench of the 22nd Judicial Circuit in the
city of St. Louis. In this capacity, he has presided over all
civil and criminal matters within the jurisdiction of the
circuit court, including trial and disposition of civil
litigation and supervision of probation matters relating to
criminal trial assignments.
Prior to his work on the bench, Judge Autrey served 10
years in the Office of the Circuit Attorney of St. Louis where
he established and headed the Child Abuse Unit.
On the personal side, I have known Judge Autrey and his
family for nearly 20 years, and I can attest that he is a man
of unwavering integrity and one who possesses a deep sense of
community and civic involvement.
He is a former member of the board of directors of the St.
Louis Area Food Bank and a former board member of Aid to
Victims of Crime. Judge Autrey currently serves on the St.
Margaret of Scotland School Board. Judge Autrey's outstanding
character, judicial expertise, and fair-minded approach are all
qualities that will enable him to serve with distinction from
the Federal bench. I believe this is a well-deserved
appointment for both Judge Autrey and the citizens of St.
Louis, and I look forward to his confirmation.
Thank you.
Chairman Leahy. Thank you very much, Congressman Clay. And,
again, thank you for being so patient, and I know you and
Congressman Brady have a lot of other things going on as we are
pushing toward this coming recess. But thank you very, very
much for being here.
Chairman Leahy. Congressman Brady, I am delighted to have
you here. You honor us by coming over, and I thank you for
that.
PRESENTATION OF TIMOTHY J. SAVAGE, NOMINEE TO BE DISTRICT JUDGE
FOR THE EASTERN DISTRICT OF PENNSYLVANIA BY HON. ROBERT BRADY,
A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA
Representative Brady. Thank you, Senator. I thank you for
allowing me to have a real brief presentation in front of you
and Senator Sessions.
Chairman Leahy. Take as long as you want.
Representative Brady. I would also like to thank Senator
Santorum and Senator Specter. I saw him on the way over. He
told me that he had presented Timmy Savage to you, and he
couldn't do it in a better way. He went through his
credentials, so I won't bore you with that.
I would also like to tell you that it is fulfills me, makes
me feel good that in the city of Philadelphia we make
arrangements--some people make deals, but we make arrangements,
and it was good to know that the arrangement was held when we
changed Presidents, and I would like to thank the President for
nominating Timmy Savage.
I have known Timmy Savage for 25 years. I have known him
and his lovely wife, Linda, and his family for that long also.
He is a sole practitioner, and that brings a unique experience
to the Federal bench. He has tried a lot of cases on every
single level. He had to do it himself. He is not part of a
major law firm, and he has been extremely successful.
He has counseled me at all times. Sometimes I have taken
that counsel and I have done well. The times I haven't taken
it, I have gotten in a little trouble and had to go back to him
and receive some more. But I am proud of him, as you all should
be proud of him, someone who will aspire to the Federal bench.
He was found well qualified by extensive investigation, and
again, I thank the President and I thank you, Senator, for your
consideration, and I thank all of you and hopefully you will
have confirmation to my friend and someone who will do us proud
to be on the Federal bench in Timmy Savage.
Thank you.
Chairman Leahy. Thank you very much, Congressman Brady. And
I am pleased to see the procedure they have in the Commonwealth
of Pennsylvania. There have been others like that of long
standing in a number of other States that have existed when
there have been both Republican or Democratic Presidents.
Unfortunately, the administration--I assume there is somebody
here from the administration; they do come by. Unfortunately,
they have decided not to go and use them, and it has created a
problem. I can think of several States where that has happened
with commissions actually set up by Republicans, and now all of
a sudden they don't want to use them. And I think it is
unfortunate.
We do use similar ones in Vermont, begun by a predecessor
senior Senator, Senator Stafford, who was a Republican. I was
there as a Democrat, and we set it up so that there would be
representation from both parties, plus representation from the
bar association, and we had no idea what their party
affiliations were. And it has worked out very well. We don't
have that many judges in Vermont, but we have some darn good
ones. And I appreciate what you have done. Thank you.
Representative Brady. Thank you, Senator.
Chairman Leahy. At this time we will enter into the record
the statements of Senators Hatch and Thurmond.
We are going to take a 3-minute break so that we can re-set
up the table, and then we will start with Mr. Smith.
[Recess 3:01 p.m. to 3:12 p.m.]
Chairman Leahy. Mr. Smith, do you swear the testimony you
are about to give before the committee will be the truth, the
whole truth, and nothing but the truth, so help you God?
Judge Smith. I do.
Chairman Leahy. Please be seated. And, Mr. Smith, you have
members of your family here. Again, I know they have already
been introduced once, but please introduce them again because I
have a feeling that someday, somewhere in the family archives
they will want to look back and see who was here.
STATEMENT OF LAVENSKI R. SMITH, OF ARKANSAS, NOMINEE TO BE
CIRCUIT JUDGE FOR THE EIGHTH CIRCUIT
Judge Smith. Thank you, Mr. Chairman. I have with me my
wife, Trendle Smith; my daughter, Stacia Smith; and my son,
Gabriel Smith. With me in spirit, of course, is my father, who
is deceased, and my mother, who is 76 and unable to physically
travel and be here. And I certainly know that they are with me.
Chairman Leahy. I am sure somewhere your father is looking
down with pride.
Judge Smith. I firmly believe that.
Chairman Leahy. I have the same feeling about my parents
every day. Miss them every day, but have the same feeling.
Mr. Smith, did you have an opening statement you wish to
make?
Judge Smith. Nothing other than simply to express my
gratitude for the privilege of being before the committee
today.
Chairman Leahy. Thank you very much. And could you pull the
microphone just a little bit closer? Thank you.
For about a quarter of a century, of the different nominees
I almost always ask questions about stare decisis and how
strongly judges think they should bind themselves to that
doctrine, and even whether the commitment to stare decisis may
vary from court to court.
It is always easy to give the quick answer that it is the
bedrock principle of our legal system that lower courts have to
follow the rules of superior courts. But I have read a Law
Review article recently where the author, who is a respected
law professor, asserts his belief that a lower court, when
faced with case law it thinks a higher court would overturn if
the higher court considered the case, should take the
responsibility upon itself and go ahead and reverse on its own.
As I read it, the idea is the Supreme Court, for instance,
has rules it follows about when to overturn precedent, and
lower courts should be no less bound to follow those rules than
they are to follow any other rule of a superior court.
Do you subscribe to this theory in which lower courts would
have to somehow decide whether a higher court is going to
overturn precedent? Or do you think they have the right to
overturn the precedents of higher courts?
Judge Smith. Mr. Chairman, I agree with, I guess, the
general sense of things regarding the importance of stare
decisis, that confidence in our judicial system is one of the
most important things that binds our democracy. And I would not
be of the view that one should as a lower appellate judge take
lightly the responsibility to follow previously decided cases
to maintain consistency within our law.
Chairman Leahy. Well, you say you generally follow the
principle, but so does this law professor generally follow the
principle of stare decisis, but raises the theory that if a
lower court somehow intuits the idea that the circuit, for
example, is going to go a certain way, then they have got a
case before them that they should go that way really on their
own rather than make the case go all the way up, get reversed,
and go back.
Do you subscribe to that more flexible thought of stare
decisis?
Judge Smith. As I sit here before you this afternoon, I
can't consider or think of a specific case where I would vary
from the responsibility to follow established precedent as an
appellate judge.
Chairman Leahy. Now, in your case, that would be, of
course, your own court of appeals, but the court of appeals
itself under certain circumstances can and has the ability to
overturn its own precedents. Is that not correct?
Judge Smith. Yes.
Chairman Leahy. But would you hold that they, however, even
in that regard, would be bound by the precedent of the only
court above them, the Supreme Court?
Judge Smith. Absolutely.
Chairman Leahy. And without judges following--and I don't
mean to put words in your mouth, so please feel free to correct
me if you disagree. But would it be safe to say that without
courts following stare decisis, you feel that there would not
be the kind of continuity and consistency in the law that our
courts should have?
Judge Smith. Yes. My sense would be that overturning
established precedent should be something that should occur
very rarely.
Chairman Leahy. Now, you know yourself that sometimes you
look at an opinion of an appellate court, and you could find a
kind of fractured opinion. It is sometimes hard to discern
precisely on what a majority of the court has really agreed. It
may agree on the final ruling, but you may have several
different decisions there, and it is pretty hard to tell what
is the rule of law. The Sixth Circuit recently had a long
discussion about a case like that.
What does the lower court do if they have a fractured
opinion?
Judge Smith. Well, that sometimes happens, of course. Our
Supreme Court produces plurality opinions and opinions which
reflect not a clear majority opinion. In those cases, it would
have to be a very clear and very thorough analysis of the
specifics of the case before the lower court determining just
how close and just how--close in fact and law that case
actually is to the established precedent. And certainly if it
is, as the law professors would say, on all fours, then
certainly that weighs heavily in favor of maintaining
established rules.
Chairman Leahy. Would it be your philosophy that judges
should interpret the law, not make the law?
Judge Smith. Yes.
Chairman Leahy. Legislative bodies make the law.
Judge Smith. Yes.
Chairman Leahy. I ask that because in the past few years
the Supreme Court struck down a number of Federal statutes,
most notably several designed to protect the civil rights and
prerogatives of our most vulnerable citizens. They have said
this goes beyond Congress' power under Section 5 of the
Fourteenth Amendment. The Supreme Court has also struck down a
statute as being outside the authority granted to Congress by
the Commerce Clause. And these cases have generally been
described as creating some kind of new power for State
governments, Federal authority being diminished because the
Supreme Court has basically rewritten the laws of the Congress
or set them aside and creating new powers for the State.
At the same time, the Court has issued several decisions
most notably in the environmental area where they grant States
significant new authority over the use of land and water,
notwithstanding longstanding Federal regulatory protection of
the environment.
So taken individually, the cases have raised concerns about
the limitations imposed on congressional authority. Taken
collectively, they appear to reflect a new federalism crafted
by the Supreme Court where it would alter fundamentally the
structure of our Government.
Do you have a view on these developments?
Judge Smith. Not in the particular developments that you
describe in terms of the individual laws and issues that may be
at issue in the question you raise. What I would respond to is,
as part of our judicial system, the principle of judicial
review of the acts of a legislative body certainly has a long
and storied history in our legal system. The right or the power
of an appellate court to declare unconstitutional an act of
Congress or a State legislative body is something that should
not be taken lightly, shouldn't be done on any basis that is
not clearly an indication--where there is clear indication that
the legislative body has acted outside the bounds of its
authority under the Constitution.
Chairman Leahy. Well, the Supreme Court, for example, has
basically done away with a great deal of our copyright and
patent laws, and while it is in the Constitution as it deals
with states, and now we have a real problem. They basically
said the states can steal somebody's copyrighted material and
use it for themselves and benefit by it and nothing can be
done. We have a pretty activist Supreme Court.
Judge Smith. My approach would be to recognize that Acts of
Congress are presumed constitutional and accord them the proper
regard and deference that is required in a system of government
of three branches such as we have, and would not in any measure
view the role of the Court that I would serve on, if I am
confirmed by this body, I would not view that as a super
legislature to easily and lightly overturn or discard the acts
of this body.
Chairman Leahy. So you would look at least, ab initio, you
would look at a congressional statute as being appropriately
enacted?
Judge Smith. Yes.
Chairman Leahy. Realizing of course the courts can still
overturn. I mean if the Congress acts outside the Constitution
or the Congress exceeds its authority, they could do that, but
it is your view that the law as passed, at least it starts off
with a presumption that it was passed validly.
Judge Smith. Yes.
Chairman Leahy. And certainly I understand that if the U.S.
Supreme Court had set aside a congressional statute, neither
one of us questions the fact that then you are bound by that;
is that correct? Are you bound by the--if you have again a case
on all fours from the Supreme Court, you are bound by that?
Judge Smith. Yes.
Chairman Leahy. Thank you. Now you practiced law for 7
years. I was looking back through the back ground material you
gave us, the types of clients you had, the kind of cases you
handled, did not give the opportunity to spend a great deal of
time in Federal Court. In fact during the 7 years you practiced
law, the matters you did have in Federal Court were for the
Resolution Trust Company; am I correct in that?
Judge Smith. Yes, Resolution Trust Corporation.
Chairman Leahy. Corporation, I am sorry. Have you had
experience in the Federal Appellate Courts including the Eighth
Circuit?
Judge Smith. Yes.
Chairman Leahy. You have?
Judge Smith. I have attended hearings at the Eighth Circuit
in conjunction with those cases for Resolution Trust
Corporation.
Chairman Leahy. Have you argued cases in the Federal
Appellate Courts?
Judge Smith. No, I have not.
Chairman Leahy. So the reason I ask this I think one of the
great strengths of our Federal Bench is that people come from a
whole lot of different categories. Quite often somebody going
on the Court of Appeals, going on there from having served a
number of years as a Federal District Judge or as an Appellate
Judge of a State Court or one who spends a lot of time before
it, you have been nominated for the seat of one of the most
respected jurists in this country, Judge Richard Arnold, and
one with decades of experience and all. You are going from 7
years of practicing law, and never having argued a case before
a Federal Court of Appeals, and with limited courtroom
experience.
Now, there are those who would say that that is making a
large jump to the Court of Appeals as compared to another step
initially. How would you respond to that because obviously you
have heard those statements. I want you to have a chance. You
do not often get a chance to answer critics, so here is your
chance. Here is your microphone.
Judge Smith. Thank you, Senator. I would respond this way.
The experience that I have had I do believe qualifies me to
serve not only the trial experience that I had, not only the
attending experience that I had before the Eighth Circuit, and
participating in the preparation of those appeals, but also my
experience in other areas of Federal law, not specifically
related to the actual practice of law. I served 2 years as
Chairman of my State's Public Service Commission, regulating
our State's electric, natural gas and telephone companies. I am
now currently back in that capacity, and that position has
required me to gain substantial familiarity with a number of
Federal laws including the Federal Power Act, the Public
Utilities Holding Company Act, the Telecommunications Act of
1996 as well as numerous dockets which are currently pending
before the Federal Energy Regulatory Commission. And in fact, I
would submit that many of the issues that currently are in the
Federal Courts relating to energy and telecommunications are as
federally significant at present as patent law or any number of
other Federal areas that an attorney may have obtained legal
practice and qualification in in years past. So while my resume
may not indicate that I tried a lot of cases in Federal Court,
I certainly do have familiarity with Federal procedure and I do
have familiarity with a number of substantive areas of Federal
Law.
Chairman Leahy. Well, let me ask you this. You were
appointed for a short time to the Arkansas Supreme Court; is
that right?
Judge Smith. Yes.
Chairman Leahy. And then you left that to run for a
position on another court; these are elected positions in
Arkansas, am I correct?
Judge Smith. That is correct.
Chairman Leahy. During that time there was a case, State v.
Robbins, where the Arkansas Supreme Court presided over a death
penalty case in which the defendant waived the right to appeal.
The majority in that case noted that nearly every other state
that has the death penalty requires an automatic review of the
death sentence, whether or not a defendant waives the right to
appeal. You dissented. Why?
Judge Smith. It had to do with the specifics of the Robbins
case. The facts of the Robbins case involved a young man who
admitted I very graphic and clear terms in an unquestioned
manner that he had committed a very brutal homicide upon a
young woman. All the facts indicated there was not one ounce of
question of doubt as to the culpability of the defendant for
the crime. Under the circumstances of that case and compliance
with the precedents under the--the then existing precedents
under previously decided cases of the Arkansas Supreme Court.
It was not my view that any additional appellate review would
have provided any additional process for the defendant that
would provide any reasonable alternative to the outcome.
Subsequent to that, that case was reviewed. It did come
back to our State Supreme Court. I joined unanimously with the
remainder of the Court in that holding on review as that case
came back to us on subsequent.
Chairman Leahy. But originally you dissented from the
majority opinion which was to allow the appeal; is that
correct?
Judge Smith. That is correct.
Chairman Leahy. It is interesting because in the past few
years 100 people on death row have been released within days
from being executed where they found they had the wrong person.
I can think of a couple where the people on death row had
confessed in great detail to having committed the crime, and it
was subsequently found they were not anywhere near the crime.
They were of limited intellectual ability. Suggestion was made,
like Senator Sessions, I am a former prosecutor. I remember
that we had one person especially that every time any major
crime was in the paper, he was immediately in the police
station as soon as the paper came out, ``I did it.'' I mean we
would tell him, ``Well, that happened 6 hours ago in California
or Hawaii or something and we are in Vermont.'' He said,
``Well, I did it.'' And there are people like that, that at
least where DNA is shown, it was not them. Even though you know
and I know that a lot of cases will have no DNA. But how do you
feel considering the number of mistakes that have been made on
death penalty cases, do you think that there should be an
automatic review of death sentences by appellate courts?
Judge Smith. Yes, I do.
Chairman Leahy. Thank you. I will have further questions,
but I want Senator Sessions to have a chance.
Senator Sessions?
Senator Sessions. Judge Smith, we are glad you are here.
There can certainly be no question that you are qualified for
the Eighth Circuit. You began your legal career as a staff
attorney for the Ozark Legal Services, where you provided legal
representation to the poor in Northwest Arkansas. After 4 years
doing that, you opened your own law firm and handle all sorts
of cases, including business law, real estate, domestic
relations, workers compensation, public benefits and estates,
just to name a few. You earned a reputation as a lawyer such
that in January 1999, Governor Huckabee appointed you to the
Arkansas Supreme Court.
Currently you serve on the Arkansas Public Service
Commission, which is responsible for regulating the State's
electric, gas and telecommunications industries. Complex legal
issues come up there, do they not?
Judge Smith. Very complex.
Senator Sessions. They certainly do. Your nomination is
widely and bipartisanly supported in your home state. I think
the Arkansas Democrat Gazette puts it best. It said, Judge
Smith possesses, quote, ``integrity, intelligence and
compassion,'' and I agree. And I will support you, Judge Smith,
and we will work with our colleagues, and we are glad that we
have had this hearing, and we hope to be able to move you
timely to the floor for a vote. I know you have been waiting
for a year now, and you will be glad to move forward.
I also was pleased to note that you had been unanimously
rated qualified by the American Bar Association. You know,
Senator Leahy asked you about the standards for review on
appeal, and I think you answered precisely correct, in accord
with a great legal tradition of the United States to follow
established precedent as you are able to do, and leaving it to
the Supreme Court to change precedents. There will be occasions
when a case will come before you and there is no appellate law
there, and so you will have to make the first decision in the
matter, but normally and frequently our appellate courts are
required on a daily basis to follow the opinions of the Supreme
Court and I am glad you are committed to that.
Mr. Chairman, I do not think you would suggest, and I
certainly do not, that merely because a Court strikes down a
Federal statute that means that you are an activist Court, that
sometimes statutes even we in this Congress pass are not
constitutional. If they are not constitutional, then the Court
has a duty but to strike them down. And our constitutional
framework does call, for example, for an interstate commerce
nexus before certain Federal actions can be taken and I believe
that those words have meaning, that the Federal Government is a
government is a government of limited powers and so on occasion
when we exceed those powers, we expect the Court to strike them
down.
What would be improper, I think, Judge Smith, is if you had
a belief in an outcome in a case and you really thought that
the legislature should have done thus and so or a jury should
have done thus and so or a lower court should have done
something different from what they did, are you able, and will
you commit to following the law even if the outcome of the case
might be different then you personally would favor?
Judge Smith. I certainly do.
Senator Sessions. I think that is the key to any judge
showing restraint and respect for law. If we do not respect the
law, if we do not respect it as it is, if we think any judge
can alter it for their highest ideals they may have, it means
the next judge can do it too, and the next judge and the next
judge, and pretty soon the legal system gets undermined, and it
gets to be a dangerous matter, particularly when, as I think we
all understand with Federal Judges, the appointment is for
life, and you are not any more answerable to the public as you
are as most state judges are.
Mr. Smith, you have had quite a bit of litigation and
experience in court, and you have tried cases, have you not?
Judge Smith. Yes.
Senator Sessions. You have had some interesting positions,
but you have dealt with individual human beings who have
problems with the legal system, but you also have been to court
and handled cases in the courtroom.
Judge Smith. Yes, sir.
Senator Sessions. Many cases.
Judge Smith. Yes, sir.
Senator Sessions. Well, I think that is important. We have
had nominees here that have never been to court, and I think
when that occurs, we need to look for some countervailing
strengths to overcome that weakness, and I believe you have
broad-based support from your community. Both your Senators
strongly support. Obviously the Governor of Arkansas is a
believer in you. Your newspaper supports you.
Mr. Chairman, I think we have a good nominee. I appreciate
you moving it, and I appreciate your good questions.
Chairman Leahy. Good to see Senator Sessions, following his
withering cross-examination, has maintained an open mind.
Senator Durbin.
Senator Durbin. Thank you very much, Mr. Chairman.
And, Judge Smith, thank you for joining us today and thank
you for your family joining us as well.
The office which you are seeking is a very important one.
It is the second highest Federal Court in the land. It is a
lifetime appointment, and if some of the questions which you
are facing today seem probative, it is because for some of us,
it is the first time we have had a chance to meet with you and
to really kind of explore what you are about, what your values
are, and that is of course very important to us as we get into
this discussion.
Let me ask you, many years ago when you went into sole
practice you said to the Arkansas Gazette, if you are properly
quoted here, that you had a sincere desire to have an influence
on law and the way things were being decided, and to approach
it from a Christian perspective.
Can you explain to me what you meant by that statement?
Judge Smith. By that statement I mean simply this. The
approach that I take to life is an approach that first gives
due regard to everyone, recognizing that everyone deserves
respect and courtesy. And in my practice of law I attempted to
accord the courts before whom I practiced due regard and
respect, the people for whom I served as counsel, to give them
due regard and respect, to take seriously the legal concerns
that they brought to me and entrusted into my care, and that I
would take as a solemn obligation to perform my service for
them to the very best of my ability.
Senator Durbin. And of course as we look at your legal
career, there are many times in legal services and in the law
practice when you did represent--I remember from my own
practice, you were representing some clients that were not the
high rollers.
Judge Smith. Definitely not.
Senator Durbin. And they were people who were coming in
with basic problems with automobiles and homes and things, and
you were their attorney, and that speaks very well of you and
your values.
I guess the point I am trying to get to is this. On the
Circuit Court you are of course going to be facing cases that
involve many different American citizens with different values
and different backgrounds. And some of them will not be
Christians, they will be of other religious persuasions. I do
not want to put words in your mouth, but do you feel that there
is something different about your view of law, based on your
religious belief, than the view of law that other Americans
might have?
Judge Smith. No. No, I do not think that there would be
anything superior or substantially different about my approach
to that of someone of a different faith or someone of no faith
at all, but who approached the law with a sense of due regard
for the unique privilege that it accords one to be a servant to
others and to be entrusted with responsibilities in advocating
and defending the rights of others.
Senator Durbin. I think that is exactly the right answer. I
hope others do too.
Let me ask you about the Rutherford Institute. You were
characterized as the Volunteer Executive Director of the
Rutherford Institute in Arkansas for a period of time, and I
think it was also a period of time when you had your own
private practice.
Judge Smith. Yes, that is correct.
Senator Durbin. And as a volunteer, you clearly were not
making a living as the Volunteer Executive Director. What is
the Rutherford Institute?
Judge Smith. The Rutherford Institute, at least during the
time that I had any affiliation with it, was a nonprofit civil
liberties organization that primarily focused on First
Amendment family issues as well as some value of life issues.
Senator Durbin. Can you give me example of the types of
legal issues that you dealt with with the Rutherford Institute?
Judge Smith. Some issues may have pertained to freedom of
assembly, freedom of religion. I dealt in a number of advisory
roles to churches and avoiding entanglements with the law,
supervision of day cares, et cetera, to make sure that they
were properly carrying out their responsibilities. The one case
that I was a named counsel on for the Rutherford Institute was
a case filed in Little Rock, I believe it was Unborn Child
Amendment Committee v. Ward was the citation of the case, name
of the case.
Senator Durbin. Before we get to that case, what can you
tell me about the Rutherford Institute? How are they financed?
Judge Smith. To my knowledge, and at least during the time
that I had any affiliation with Rutherford, which is now close
to 10 years past, it was entirely donation.
Senator Durbin. Were there any major sponsors, individual,
corporate and otherwise?
Judge Smith. I really do not know. I do not--there were
none that I was aware of at the time that I had any affiliation
with Rutherford.
Senator Durbin. How did you become affiliated with them?
Judge Smith. Through contact with the founder of the
Rutherford Institute, Attorney John Whitehead.
Senator Durbin. And he contacted you personally?
Judge Smith. Yes.
Senator Durbin. Is he from Arkansas?
Judge Smith. He attended law school in Arkansas.
Senator Durbin. But he lives in another state now?
Judge Smith. Yes, I believe he lives in Virginia.
Senator Durbin. Let me ask you about that case. And I guess
the one thing that the staff found interesting is when we asked
you to identify the 10 most significant cases that you had been
involved in, you did not mention that case, and this was a case
before the Arkansas Supreme Court on a very important issue
involving a woman's right to choose or the issue of abortion.
Is there a reason why you did not list that case?
Judge Smith. Yes. I chose to list the cases that I had some
significant legal involvement with other than I was named as
counsel in that case, but I did very little of the actual
litigation. And so the cases that I listed were cases that I
handled principally or was significantly involved in a
substantial way in the actual legal work.
Senator Durbin. In the report of the case before the
Supreme Court of Arkansas, you were listed as the lead
attorney.
Judge Smith. That would have been, David Nixon would have
been the lead attorney in----
Senator Durbin. He is listed as the next name. Lavenski R.
Smith and David G. Nixon, Springdale, for appellants.
Judge Smith. He actually argued the case. I did not argue
the case before the Supreme Court.
Senator Durbin. I would like to, if I have the time, spend
a minute on this case, because it is an interesting issue that
you may face as a Circuit Court Judge. First let me ask you
this. As Senator Sessions has said, you are going to be asked
to uphold some laws that you may disagree with. Now, the
Circuit Courts of our country consider 50,000 cases a year, and
many times their decisions lead to changes in the Court opinion
of law. Can you tell us your view now of Roe v. Wade, the
Supreme Court decision involving a woman's right to choose, and
how you would enforce that decision?
Judge Smith. Well, as I understand the current precedence
of U.S. Supreme Court Roe and those cases decided subsequent to
it are the law of the land, and it would be my obligation, and
I would assume that obligation fully, to apply that law and
enforce it. It would be my obligation to follow the precedence
of the U.S. Supreme Court.
Senator Durbin. Did you feel the position you took in this
Ward case was consistent with Roe v. Wade?
Judge Smith. At the time, yes. The case was not a case that
I viewed in any way as an attempt to somehow not follow the
U.S. Supreme Court. It was a case based on the Constitution of
the State of Arkansas.
Senator Durbin. And of course the Supreme Court of Arkansas
ruled against you in that case and said that your legal
argument did in fact violate the Arkansas, I guess, Amendment
to the Constitution involving the funding of abortion; is that
correct?
Judge Smith. Well, the--as I recall, the holding of the
State Supreme Court was that there was not--it was not
demonstrated that the actions of the hospital in question were
in contravention of the Unborn Child Amendment.
Senator Durbin. That is right. And I think they said
specifically that the Arkansas Constitution, the Amendment that
was agreed to by the people of Arkansas, said no public funds
were used to pay for an abortion. You argued to the Court, I
believe, that the University of Arkansas Medical Sciences
Facility, because it was sustained by public funds, was at
least indirectly in violation of that constitutional provision.
Was that the basis of your argument?
Judge Smith. That was essentially the argument.
Senator Durbin. And the Supreme Court ruled otherwise.
Judge Smith. Yes.
Senator Durbin. What I am trying to get to is this: I can
understand as a former attorney and trial court lawyer and
such, you seek an advocacy position for your client or you are
not doing the job for them. Now, I am trying to put you in this
new role as a Circuit Court Judge and ask you, as you step back
from the fact pattern in this case, do you have any problems
with their conclusion that Roe v. Wade and the Arkansas
Constitution, consistent in terms of guaranteeing a woman's
right to choose?
Judge Smith. Senator, if I am fortunate enough to be
confirmed by this body, I will enforce the precedence of the
U.S. Supreme Court and would view that as my solemn obligation.
Senator Durbin. [Presiding] OK, thank you. Thank you very
much.
I do not have any further questions. I do not know if
Senator Sessions does, or if Senator Leahy when he returns.
Senator Sessions. Yes, briefly on the subject, because
these are issues that people care about, but really I think
most of the time we are just talking about simple legal issues
that people disagree on. Your concern was that there was a
Arkansas Supreme Court provision adopted by a vote of the
people of Arkansas, that would prohibit public funds for the
purposes of performing abortions except when the life of the
mother is at stake. Is that basically correct?
Judge Smith. Yes. It was an Amendment to the Arkansas
Constitution.
Senator Sessions. And so the question was whether or not in
utilizing public hospitals that are funded by the State, that
that was in violation of that Constitutional Amendment, and the
Arkansas Supreme Court held that contrary to your argument or
the argument of attorneys on your side, that funds did not
prohibit the use of facilities, but did agree with you that to
the extent, and I am quoting now, quote: ``To the extent a
State hospital incurs actual cost in performing and abortion
and these costs go uncharged and unpaid by the parties, public
funds are being used to pay for abortions,'' close quote, in
violation of it.
So anyway it is a complex issue, and I do not think your
position was out of leftfield, that you are a lawyer
representing a action and taking it to Court, and you got your
day in Court, and the Court agreed with you on some and did not
agree with you on others.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
And Senator Durbin may have asked this, but am I correct
that you are not currently affiliated with the Rutherford
Institute in any way?
Judge Smith. That is correct.
Chairman Leahy. Were you affiliated with them in any way at
all except from 1991 to 1993?
Judge Smith. No. Those dates I think are accurate, but the
only affiliation I had was temporarily as a State Executive
Director, and Rutherford abandoned its state chapter
organization many years ago.
Chairman Leahy. Any further questions?
Senator Sessions. Can I followup on one point?
Chairman Leahy. You can take all the time you want; you are
good enough to stay here for this hearing.
Senator Sessions. I believe you were asked about when you
began your legal services career. You said you like to bring a
Christian perspective to your practice. Was it legal services
career or----
Judge Smith. No, that was--I had begun my private practice.
Senator Sessions. Your private practice. Did that mean that
you would not seek to advocate the best legal issues and
positions possible for your client, so in any way that you
would fail to follow the law as written?
Judge Smith. No, it did not mean that at all.
Senator Sessions. I presume it had more to how you intended
to relate to your clients?
Judge Smith. Precisely.
Senator Sessions. And your personal caring for them.
Judge Smith. Senator, if I can give you an example, I had a
gentleman come to me for a divorce. His wife had filed a
divorce complaint against him. We began the process of
attempting to work out an amicable dissolution of that
marriage. He came back to me another day completely livid with
how things were progressing, and stood in front of my desk and
asked me could I get mean, meaning, I suppose, that he would
like for me to take a very aggressive stance in the contest of
his divorce proceeding. My approach, and I explained it to him
this way, ``Yes, I can get mean if that is''--and I told him
what that would mean in terms of how it might be commonly
understood by those in the practice of the law. But I told him
that I would not, and that that was not what was in the best
interest of his children, and of the dissolution of his
marriage. And we discussed it, discussed the pros and cons to
how--the alternatives to approach his case. And after he calmed
down I think he saw that the appropriate way to continue the
case was not to acerbate the emotions of the parties.
Senator Sessions. I think I hear more judges and older
lawyers tell me that there is too little of that in the
practice today, too little civility, too little concern, and
too much concern for winning. I think you have got the kind of
values that would be helpful to our judicial system. Thank you
very much.
Chairman Leahy. Mr. Smith, when I look at a judicial
nomination, I look at a number of things, and I voted on--of
those that have come before us, I voted for probably 99 percent
of President Ford's, President Carter's, President Reagan's,
former President Bush, President Clinton's, and now all but a
couple of the ones that have come here so far from the current
President Bush. But the issue I look at and what determines my
vote is obviously the questions of qualification, how much
experience has a person had, how prepared are they to walk out
of this room today and into that courtroom tomorrow, but how
they treat people who come before them. I do not particularly
care whether a person is a Republican or a Democrat when they
are coming to go on the bench. What I want to know is if I come
into that courtroom as a litigant, or my neighbor who has
different political affiliations than I do comes in that
courtroom as litigant, or whether it is a rich person or a poor
person, plaintiff or defendant, popular cause or unpopular
cause, are they going to be treated the same? Are they going to
look at their judge and say, ``I know I will have a fair
hearing. The Judge and I may come from different backgrounds.
The Judge and I may have different past political affiliations,
whatever it might be. But I know I am going to get treated
fairly. I am going to win or lose based on what my case is,''
which is of course what the courts are supposed to be. They are
not supposed to be somebody shifted ideologically to the far
right or ideologically to the far left. They are supposed to be
there so everyone, so any person in this room or any person
walking down the street out front could look at whatever court
that was and say, ``I am going to be treated fairly.'' And when
I voted no on a judge, basically it wa because I felt they
could not do that.
I mean a judge, a Federal Judge has a very powerful
position, and everybody is always going to say the right things
when they come here. And once they are confirmed, they are
there for life. We have had some nominees come here and told us
one thing and once they got confirmed, they had done something
else. There is not much we can do about it. But if you are
confirmed, I would hope you would think there is more than just
the legal issues, it is a question of forcing yourself to be
absolutely fair. What if somebody comes in with a position you
may feel is an unpopular one, or a popular one, either way, you
have got to be even-handed. In other words, you do not hold the
unpopular position against somebody any more than you would
hold the popular one for them. You would have to look at it
really straight down the middle. Otherwise our Federal Court
systems fall apart. We have a Federal Court system that is
respected when it is seen as impartial and independent. The
public loses that respect when it is seen otherwise.
Judge Smith. I agree entirely.
Chairman Leahy. Thank you. Mr. Smith, I would like to have
you and your family here--are there further questions? The
record of course will stay open for Senators on either side,
Senator Hatch or anybody else to submit questions if they want,
and I thank you for being here. I certainly do not feel that
you have to stay longer. By this time probably everybody with
you and your family probably stayed long enough, and we will
recess for 3 minutes while we set up the table for the panel of
the District Judge nominees. Thank you, sir.
Judge Smith. Thank you very much for your consideration.
[The biographical information of Judge Smith follows.]
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[Recess from 3:58 p.m. to 4:01 p.m.]
Chairman Leahy. Is everybody here? If you all raise your
right hand.
Do you swear the testimony you are about to give before
this committee should be the truth, the whole truth and nothing
but the truth, so help you God?
Judge Autrey. I do.
Mr. Dorr. I do.
Judge Hudson. I do.
Ms. St. Eve. I do?
Mr. Savage. I do.
Chairman Leahy. The record can show that all answered in
the affirmative. Please sit down.
So we can have this for the record, we can start. Judge
Autrey, would you please introduce whoever is here with you?
Some day you are going to look back on this and be glad you got
it on the record.
STATEMENT OF HENRY E. AUTREY, OF MISSOURI, NOMINEE TO BE
DISTRICT COURT JUDGE FOR THE EASTERN DISTRICT OF MISSOURI
Judge Autrey. Mr. Chairman, I would like to introduce my
lovely wife, Mary, who is here I think, unless she stepped out
too. She did step out. But she is here.
Chairman Leahy. We are going to show her as being here. And
who else?
Judge Autrey. Just my wife and I. The kids are Emily and
Fritz, are at home and school. And my mother and father are
both deceased, although I know they are here in spirit, because
it is because of them that I am here today.
Chairman Leahy. Thank you. I am sure it would be a proud
day for them. As I said earlier, we have to assume they know.
Judge Autrey. Indeed.
Chairman Leahy. Mr. Dorr.
STATEMENT OF RICHARD E. DORR, OF MISSOURI, NOMINEE TO BE
DISTRICT COURT JUDGE FOR THE WESTERN DISTRICT OF MISSOURI
Mr. Dorr. Mr. Chairman, I would like to introduce my wife,
Barbie and my son, Scott.
Chairman Leahy. It is good to have you both here.
Mr. Hudson. You had along drive to get here.
STATEMENT OF HENRY E. HUDSON, OF VIRGINIA, NOMINEE TO BE
DISTRICT COURT JUDGE FOR THE EASTERN DISTRICT OF VIRGINIA
Judge Hudson. In the traffic in Northern Virginia, yes,
sir.
Chairman Leahy. I know, I know that traffic.
Judge Hudson. I would like to introduce, Mr. Chairman, my
wife Tara, my son Kevin, my brother and sister-in-law Lance and
Jessica Lydon, and my law clerk Julie Gossman, who is here
today to give me some support.
Chairman Leahy. Well, you are no stranger to this room,
having been here a number of times before in various
capacities.
Ms. St. Eve.
STATEMENT OF AMY J. ST. EVE, OF ILLINOIS, NOMINEE TO BE
DISTRICT COURT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS
Ms. St. Eve. Thank you, Mr. Chairman. I would like to
introduce my husband Howard, my oldest daughter Lauren who is
4-1/2. Our 20-month old Emily we left at home, otherwise you
would hear her. And Brett, our 6-week-old son who you have
already heard from. Also my sister-in-law Amy Cima, and my
niece Alessia Cima. Thank you.
Chairman Leahy. Thank you very much.
Mr. Savage.
STATEMENT OF TIMOTHY J. SAVAGE, OF PENNSYLVANIA, NOMINEE TO BE
DISTRICT COURT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Mr. Savage. Thank you, Mr. Chairman. I would like to
introduce my wife and best friend, Linda. My eldest son Tim is
not here, but my grandson, his son Patrick is here. My middle
son Daniel, and his son, our grandson, Daniel, Jr., and our
youngest son Christian, and my brother-in-law Paul Brisgone.
Chairman Leahy. Good to have you all here. And if I might
begin, Judge Autrey, you worked on a number of bar association
committees that work and improve the judicial system I think
since the year 2000, and correct me if I am wrong on this, you
have served on the Missouri Bar Agenda Bias Committee and the
Missouri Legal Services Oversight Committee. These are
basically pro bono things, are they not?
Judge Autrey. That is correct, Mr. Chairman.
Chairman Leahy. I am a strong advocate of people doing pro
bono work. Those that come before us for confirmation simply,
because it gives them a different experience than just the
normal facts of law. How do you feel this has helped you? I
mean you have worked a number of different areas. How does the
experience of these pro bono operations help you in what you
feel a Federal District Judge should be?
Judge Autrey. I appreciate the opportunity to answer that
question, Mr. Chairman, because it is my life and career as a
lawyer and as a member of the Court has been dedicated to
serving people within the community, regardless of who they may
be from where they may be whether they are rich or poor,
regardless of their religion or race. And the pro bono
experience that I have had specifically outside of any
committee work that I have been involved in as a member of the
bench or as a lawyer has mostly been, almost entirely been
related to helping persons who have been victimized in one way
or another, beginning with my career as an intern for Legal
Services for Eastern Missouri while a law student my third
year, and then moving on during my tenure as a prosecutor in
the city of St. Louis in the Office of the Circuit Attorney.
You know, with respect to the Prosecutor's office, the
fiction was, and I think still is, that we represent an entity,
the State. In my view as a prosecutor and the view of many
other prosecutors that I worked with in that office was that
our true client was the individual victim who had been
victimized either by robbery or burglarized or sexually
assaulted. The pay that we received as public servants was far
greater than any pay that any of my colleagues received who
went on to the prior practice of law. Many of them joke that in
essence we were doing pro bono work because of our salary in
relation to the salaries that many of them receive.
So the wealth of my experience has been in essence dealing
with pro bono circumstances. I think that has served me well,
and will serve me well should I be fortunate and privileged
enough to be confirmed by this committee, to deal with and
resolve issues that appear before me from members of the
community at large, members at the society at large, members of
this Nation, regardless of their position, status, race or
background. I think that is what the job is all about as a
Judge.
Chairman Leahy. Do you feel that pro bono work is important
for somebody who may be considered for the bar?
Judge Autrey. I think pro bono work----
Chairman Leahy. Or maybe I should ask you this. Not
necessarily for the bench, but how about this. Do you feel it
is important for lawyers, who after all do have a privileged
part in society in most cases, to do pro bono work?
Judge Autrey. I would agree with you, Mr. Chairman, that
being a lawyer in America is a privilege, and as it is a
privilege, it has a heightened duty of service for those who
are granted the privilege to occupy themselves as practitioners
of the law. I think that pro bono work is the heart and soul of
the practice of law because the practice of law is
fundamentally about providing services, and it is fundamentally
about providing services for those persons that have legal
issues and legal problems and they don't have the skills and
the ability to address those particular issues themselves.
They're not trained in the practice or in the art of the law as
we are as attorneys, and to pay back, if you will, for the
privilege of serving, I think that all lawyers should provide
pro bono services for those individuals that need it, who
otherwise may not be able to redress issues that are personal
to them in a court of law.
Chairman Leahy. And Judge Autrey, would it be safe to say
that you have no problems with the well-established tradition
of stare decisis?
Judge Autrey. Stare decisis and the duty to follow
precedent is the fulcrum of our legal system. It is that aspect
which provides continuity, provides consistency, and it
provides the public a degree of predictability as to what the
outcome of their case may be. I think without it we would be in
serious disarray.
Chairman Leahy. You may have heard the discussion I had
earlier about trying to guess the direction of a court may be
going--would you agree with me that that might be a little bit
dangerous to take that kind of leap of faith, that you know
which way the appellate court is going, or more specifically,
would it be a kind of dangerous leap of faith to assume the
appellate court is going to overturn precedent?
Judge Autrey. Well, Mr. Chairman, I have been a trial judge
at the State level in the city of St. Louis in Missouri since
1986, and it was my view before I came onto the bench as a
trial judge, and it would be my view as a trial judge at the
Federal District level for the Eastern District of Missouri if
I am privileged enough to get the confirmation vote, that it
would be my duty to follow the law, particularly as a trial
judge. You're not in a position to make law, if you will, and I
don't mean that from a legislative standpoint, but I mean it
from a creative legal analysis standpoint. It is the primary
duty of a trial judge to follow existing precedent, and to
apply it effectively to the facts and circumstances that are
before him or her at the time.
Chairman Leahy. A trial judge does not get an awful lot of
legal room, a lot of wiggle room.
Judge Autrey. Very little, and sometimes I find, Mr.
Chairman, if you start wiggling, you have some big problems.
Chairman Leahy. I understand. I have been in those courts.
I know.
Mr. Dorr, your professional experience as a lawyer is
focused generally on civil practice.
Senator Sessions. Mr. Chairman, could I interrupt you 1
second?
Chairman Leahy. Of course you can. You have been good
enough to stay here all day. You can do whatever you want.
Senator Sessions. It is always wonderful, and this is an
important time for these excellent nominees and their families,
and I thank you for the courtesy you have shown to them, and
the respect you have shown to them.
I want to introduce in the record some general remarks
about all the nominees, but I did want to say how much, how
pleased I was to see Henry Hudson. Judge Hudson, it is good to
see you. We served as United States Attorneys together, and
during that time on the U.S. Attorneys Advisory Committee, I
got to know Henry well. He led the Operation Ill Wind
investigation, which I think would probably represent the most
significant Federal prosecution of defense fraud activities
ever prosecuted in this country's history. 54 people were
convicted by his office. A lot of people wanted to tell him how
to do it. He did it like he wanted to, according to justice and
what he believed was right. He was aggressive, and there was a
lot of howling and gnashing of teeth, but you did justice,
Henry, and I think the entire defense industry is a lot better
today than it was.
Judge Hudson. Thank you for your kind words, Senator.
Chairman Leahy. Judge Hudson, we are moving Senator
Sessions slightly out of the undecided column on your
nomination. And I am taking, that is on a leap of faith right
there.
Senator Sessions. And Senator Thurmond also wanted to have
his statement put in the record, and I know he also has known
Mr. Hudson, and particularly commented on his personal
knowledge of his abilities.
Chairman Leahy. We will put all statements in the record of
course. The record will stay open for questions that other
Senators may have.
Mr. Dorr, as I was saying before, you have been generally
civil practice, commercial litigation, real estate issues,
employment law and so on. I take that from your questionnaire.
You said about 2 percent has focused on criminal matters.
Unfortunately or fortunately, as Judge Hudson and I and Senator
Sessions were all former prosecutors, and we know that in the
courts it is getting more and more criminal cases. Whether they
like it or not, even to the extent of squeezing a lot of
important civil cases.
How do you get up to speed to handle criminal matters which
are in many areas a lot different than the civil matters you
have handled?
Mr. Dorr. I understand that question, and I have had some
experience. It's been a few years ago, but in the military I
did prosecute and defend. In those days we switched back and
forth on the workload there, so for 5 years I had that, and I
haven't forgotten those experiences.
I will, in terms of what I will do, I, if I'm fortunate
enough to go forward, I will do what it takes to get up to
speed. I've talked to the judges, some of the judges in the
Western District, who likewise did not come from a criminal law
background. They've indicated they didn't have a problem and
didn't think it would be a problem. I feel like I can likewise
be a good listener, do what I need to do to put the time in to
read and understand it, but I really have not felt that it
would be that much of a challenge for me.
Chairman Leahy. The military, that was with the Air Force;
is that correct?
Mr. Dorr. Yes, it was.
Chairman Leahy. Going through the background, you have
taken a number of pro bono cases from Legal Aid. You should be
very proud of having received the Equal Access to Justice Award
from the Springfield Metropolitan Bar. You are an original
Incorporator of the Partners with Youth Foundation, raising
funds to provide assistance to low-income students to help
them, to spend in school activities. I mentioned also,
following up with what I said with Judge Autrey before, I think
lawyers have responsibility to do that kind of thing. I commend
you for it.
Mr. Dorr. Thank you.
Chairman Leahy. Not to embarrass you here, but you are not
about to come up with that, so I will do it for you. The law
firm I was in when I first started practicing law in Vermont,
we were told by the senior partner, a very conservative,
cantankerous pillar of the Republican Party, but actually that
time, that is the only party that was, that we are going to do
pro bono work, all of us, and we did, which included, as he
would remind us at Christmas time, he would ring the bell on
our main shopping street for several hours each day around
Christmas time for the Salvation Army. And you have to
understand this is outdoors in Vermont in December. And he was
sure the young lawyers would volunteer an equal time. You had
better believe that we volunteered, at least an hour or more.
Mr. Hudson, you have been serving as a Judge in the Fairfax
County Circuit Court since 1998?
Judge Hudson. Since 1998, yes, sir.
Chairman Leahy. That is what I thought. You were a
prosecutor for over 20 years, and a very active prosecutor. I
am a part-time resident of the Commonwealth of Virginia. I know
what you mean about traffic, which has gotten considerably
worse in 25 years here, at least in Northern Virginia.
Anybody who has been here during that time has seen your
name over and over again in the press, and your work as a
prosecutor, cracking down on burglars, drugs, sexual assault
and so on.
Now, some defense lawyers--and you have heard this before--
raise concerns about your ability to be fair to all parties.
They said you are unyielding, rigid, not interested in even-
handed justice. In March 1999 the Washington Post said as a
Judge you raised an objection on behalf of the prosecution and
sustained it, even though the prosecutor had not moved,
although you said that you were going to take an effort not to
do that in the future.
I am asking these questions not to embarrass you, but to
give you a chance to speak to them. I was a prosecutor. I was
picked as--back when they used to do that--the National DA's
picked me as one of the three outstanding prosecutors in the
country. I considered myself a tough prosecutor but I
considered myself a fair one. I also felt that a prosecutor had
to be pretty--while we wanted to win, also had to win fairly,
just to set the standards for everybody from the police all the
way up, and also to maintain the credibility of the office so
that courts would know they are being fair. Courts of course
have even a greater thing. In a Federal Court you cannot have
somebody come in and say, ``I am the defendant. I am
automatically dead if I come in that court.'' Or if I'm the
plaintiff, ``I'm automatically dead if I come in that court.''
How do you assure us you would be even-handed in a court
where even-handedness has to be the standard, there can be no
other standard?
Judge Hudson. Mr. Chairman, it's been about 10 years since
I was a prosecutor, maybe more than that. I actually did some
defense work for quite a while and handled a number of criminal
defense cases.
When I became a Circuit Court Judge in Fairfax County, you
are absolutely right, that was a consideration a lot of people
had. However, I think my track record as a Circuit Court Judge
in the last 3-1/2 years has demonstrated that I can be even,
that I can see both sides of the issue and I can be fair and
compassionate.
Some of the comments that have come out from the criminal
defense bar after my nomination to this position have been just
the opposite. The head of the Criminal Defense Lawyers in
Virginia indicated that he was surprised at how fair I had been
and what a balanced job I had done as a Circuit Court Judge.
From the number of letters you may have received, Mr.
Chairman, from members of the bar in Fairfax County, who
indicate that I have striven to be balanced, to be fair, to
consider all sides of the issue. Sometimes I find people
guilty, sometimes I find them not guilty. I don't owe any
allegiance to either side. I call them as I see them.
Additionally, when the American Bar Association did my
investigation, that was one of the things the investigators
said ``We're going to focus on.'' And he was surprised at how
balanced my record is and how high marks I get from lawyers who
practice in my court, because they gave me, as you know, the
majority rating of well qualified.
So I think any notion that I can't be fair has been far
overcome by what I have done in the 3-1/2 years as a Circuit
Court Judge.
Chairman Leahy. Thank you. There will be some followup
questions. Also Senator Warner and Senator Allen have other
letters on your behalf, which all of these will be part of the
record. And if I look like I am rushing it is partly because
this vote has begun, and if I do not complete this panel before
I have to go to vote, you are all going to get stuck here till
about 7 tonight, and you do not want that.
Judge Hudson. So I can enlarge on my answer with just one
more thing, sir?
Chairman Leahy. Of course.
Judge Hudson. Senator, you mentioned a comment that I made
to my good friend, the reporter from the Washington Post that
did that article about me, and it is something I did the first
week or two on the bench. I did sustain my own objection, which
is a frequent practice in Virginia I might add, that every
judge I have ever clerked for has done that. I don't do that
any more. I recognize that's inappropriate, and I learn by my
mistakes.
Chairman Leahy. I kind of wondered on that one, because I
remember when I was prosecuting cases I had a number of times
when I know I could object, but I did not, because one I did
not want to have the jury see me object too much, but I also
knew that they were about to get into an area that if I did not
object, I had a lot of room on redirect that I would not have
had otherwise, and so I was delighted to let them go down the
primrose path.
Judge Hudson. The only reason I would ever do that, Mr.
Chairman, would be to prevent a mistrial.
Chairman Leahy. Yes, of course. And there a judge, I think
we both agree, a judge should do everything possible to avoid
having to have a mistrial, and one can argue that that is in
the better interest of justice itself.
Ms. St. Eve, talking about trying a case close to the time
you were going to deliver. We have one of the attorneys here
who is a former prosecutor on my staff who had a major
organized crime case in New York, finished her summation to the
jury, while the jury was out deliberating, went and had her
baby. She won the case incidentally.
Ms. St. Eve. I wasn't quite that close.
Chairman Leahy. You have been practicing law for a
relatively short time. I can assume your answer to this, other
questions. Do you feel ready to step into what are enormous
responsibilities, and with some people literally are going to
be life and death responsibilities as a Federal Judge?
Ms. St. Eve. Yes, Mr. Chairman, I do. And I certainly
realize the big shoes that I'll be stepping into. During the 12
years I have been practicing law I've been fortunate enough to
see all sides. I've been a criminal prosecutor. I've been a
defense lawyer. I'm in house now. I've practice criminal law. I
practiced civil law. And I feel that that wide variety of
experience has prepared me for this position.
Chairman Leahy. In case anybody sitting here thinks that
you are getting off very easy, there are going to be a couple
of followup questions, but I did want to get to Mr. Savage.
You're a sole practitioner, am I correct, Mr. Savage?
Mr. Savage. That is correct, Senator.
Chairman Leahy. And that's criminal, commercial, personal
injury litigation, that type of thing?
Mr. Savage. That's correct.
Chairman Leahy. But did you not serve as a Judge Pro Tem in
the Court of Common Please?
Mr. Savage. In Philadelphia, the Court of Common Pleas, I
did. I still do.
Chairman Leahy. Thank you. You have also been a mediator
and hearing examiner. Tell me about that. Does that--do you
feel the experience you have had as that will serve you well or
be irrelevant as a Federal Judge? How is that for a nice
softball? If you cannot hit that one of the park, you do not
deserve to be on the bench.
Mr. Savage. The answer is yes, Senator. I'm not going to
disagree.
Chairman Leahy. But as a mediator, is it fair to say you
have got to really pay attention to both sides when you come in
there?
Mr. Savage. I believe you do, and that mediation service
was with the Eastern District of Pennsylvania Federal Court.
Chairman Leahy. I also notice your pro bono activities.
I will recess at this point. We will keep the record open
for other Senators' statements, Senator Hatch and others, and
for followup questions. I would urge and tell staff to notify
your Senators. I would like, if there are followup questions,
in very quickly out of courtesy to the nominees so that they
will not have this matter hanging.
And I thank all of you for the courtesy and the time that
you took. And we did not give all of you a chance to mention
your family here. Mr. Savage, you did not?
Mr. Savage. Yes, I did.
Chairman Leahy. I want to make sure. With the interruptions
I have been getting back here, I wanted to make sure I got all
of you. Fine. Thank you.
[The biographical information of Judge Autrey, Mr. Dorr,
Judge Hudson, Ms. St. Eve, and Mr. Savage follow.]
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[Whereupon, at 4:26 p.m., the committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATION OF JOHN M. ROGERS, NOMINEE TO BE CIRCUIT JUDGE FOR THE SIXTH
CIRCUIT; DAVID S. CERCONE, NOMINEE TO BE DISTRICT JUDGE OF THE WESTERN
DISTRICT OF PENNSYLVANIA; KENNETH A. MARRA, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA; MORRISON COHEN ENGLAND,
JR., NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
CALIFORNIA; AND LAWRENCE GREENFELD, NOMINEE TO BE DIRECTOR, BUREAU OF
JUSTICE STATISTICS, DEPARTMENT OF JUSTICE
----------
THURSDAY, JUNE 13, 2002
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 2:05 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Dianne
Feinstein presiding.
Present: Senators Feinstein, Feingold, Specter, and
McConnell.
PRESENTATION OF MORRISON COHEN ENGLAND, JR., NOMINEE TO BE
DISTRICT JUDGE FOR TH EASTERN DISTRICT OF CALIFORNIA BY HON.
DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Feinstein. I am going to open the hearing. I am
substituting for Senator Feingold, who asked that I do this,
and I will turn over the gavel to Senator McConnell as soon as
he comes. But in the interest of time, I thought it would be a
good idea to begin.
This hearing will cover four of President Bush's judicial
nominees, along with the nominee to head the Department of
Justice's Bureau of Justice Statistics. And before we begin the
hearing from the nominees, we will first hear from members of
this committee, as well as other Senators and Members of
Congress on panel one who wish to speak. And I see Senator
Bunning already present.
I would like to enter into the record the statement by the
chairman of the committee, Patrick Leahy, without objection.
Senator Feinstein. I would indicate that the record will
remain open to the close of day for any statements to be placed
therein. And I would like to begin by delivering a statement on
Morrison England, who is a nominee from California. And, Judge
England, would you stand so that everybody might see you and
welcome you. We are delighted that you are here with us today.
Judge England is--you may sit down. Thank you.
Judge England is the third candidate to come out of
California's Judicial Advisory Committee, and I think it is a
testament to his ability that the committee forwarded his name
to President Bush with a unanimous 6-0 vote. That means that
three Republicans and three Democrats all voted for him.
President Bush nominated Judge England to the district
court on March 21st, and I want to thank Senator Leahy for
scheduling this hearing so expeditiously.
Judge England is joined by his wife, Nancy. Would you
please stand for a moment? Thank you very much. And she is a
pharmacist with the Pharmaceutical Care Network.
I also know that he is joined in spirit by his son, John,
and his step-children, Natalie and Clayton, whose school
obligations prevented them from making the trip.
Judge England has firm roots in the Sacramento community,
having spent his last 30 years in the Sacramento area. He
obtained his undergraduate and law degrees from the University
of the Pacific. A star football player in college, he briefly
interrupted his studies in 1976 to play football for the New
York Jets.
After law school, he spent over 10 years in private
practice, rising to the position of main partner in the firm of
Quattrin, Johnson Campora & England. His practice focused on
business and real estate transactions.
In 1996, Judge England was appointed to the Sacramento
County Superior Court. During his tenure on the court, he has
taken on some of the toughest assignments. Among other things,
he oversees cases on the court's accelerated civil trial
program, and he handles the more complex civil and criminal
trials.
The legal community in the Sacramento area has given him
glowing marks. Sacramento Superior Court Judge David DeAlba
observes that Judge England has an outstanding reputation as a
jurist who is firm, fair, understanding, and compassionate.
District Court Judge Martin Jenkins writes that Judge
England is an exceptional judge and praises him for his superb
legal mind, his courtroom demeanor, and his commitment to the
rule of law.
California State Appellate Judge Connie Callahan wrote that
Judge England has widespread support in the Eastern District,
including, but not limited to, the legal community, the
judiciary, law enforcement, business, and charitable
organizations.
And Donald Steed, president of the Sacramento County
District Attorneys Association, said England would be a great
addition to the Federal bench and praised him for his fairness,
compassion, strength of character, and judicial knowledge.
So given such high praise, it is not surprising that a
substantial majority of the American Bar Association's Standing
Committee on the Federal Judiciary found Judge England to be
well qualified.
I would just like to also note that he has been a member of
the Judge Advocate General's Corps for the United States Army
Reserve since 1988. He currently holds the rank of Major and is
a senior defense counsel for the 22nd Legal Support
Organization.
Because the screening panel that Senator Boxer and I
negotiated with Mr. Parsky on behalf of the White House has had
some complaining in the press, I want to say that these
committees in each of the districts are comprised of three
Republicans and three Democrats. And the fact of the matter is
that it has taken partisanship away from the judging, which I
think is just terrific.
Judge England comes out of that process with a 6-0 vote,
and I am also proud to say that as of today all of the
nominations have come out--eight people nominated to the
President for two additional spots in California. And I just
want to say I am very proud of the functioning of our screening
panel, and I am very thankful to Mr. Jerry Parsky for
suggesting it, putting it together, monitoring it, and
overseeing it in the State of California. It is alive, it is
well, and it is working, I think, in a fine way.
That completes my remarks, and I would now like to turn the
gavel over to Senator McConnell, if I might, and ask that he
conduct this hearing.
Senator McConnell. [Presiding.] Thank you very much,
Senator Feinstein. I am trying to get myself oriented here.
Where are we?
Senator Feinstein. Right now we are on members' remarks, if
you have remarks to make, and then Senator Bunning was here
first, so he would probably be the first one, and then Senator
Santorum, to make comments about their nominees.
Senator McConnell. Okay. Thank you very much.
Senator Feinstein. Right.
PRESENTATION OF JOHN M. ROGERS, NOMINEE TO BE CIRCUIT JUDGE FOR
THE SIXTH CIRCUIT BY HON. MITCH MCCONNELL, A U.S. SENATOR FROM
THE STATE OF KENTUCKY
Senator McConnell. Well, Senator Bunning and I are here to
introduce a nominee from our State to the Sixth Circuit Court
of Appeals. I am happy to comment today on Professor John
Rogers from the Commonwealth of Kentucky. President Bush has
nominated Professor Rogers to the Sixth Circuit Court of
Appeals.
As many people are now aware, the Sixth Circuit is in dire
straits, with 50 percent of its 16 seats vacant. So I
appreciate Chairman Leahy holding this hearing for Professor
Rogers to try to provide some relief to our circuit.
John Rogers' career is marked by excellence and
achievement. He was elected to Phi Beta Kappa during his junior
year at Stanford. At the University of Michigan Law School, he
was a member of the Order of the Coif. As a student, Professor
Rogers chose to serve our country in the United States Army
ROTC, going on to active duty in the field artillery. He
excelled there, too, graduating first in his class of 120 in
his field artillery studies.
Professor Rogers has continued to serve his country in the
United States Army Reserve, including serving as a consulting
faculty member at the Command and General Staff College in Fort
Leavenworth, Kansas. He is presently a Lieutenant Colonel
(Retired) in the Army Reserves.
With respect to his legal experience, John Rogers joined
the Appellate Section of the Civil Division of the U.S.
Department of Justice upon graduating from law school. He
accepted a position on the faculty at the University of
Kentucky College of Law in 1978, where he is the Thomas P.
Lewis Professor of Law.
In 1983, he returned to the Justice Department as a
visiting professor. There, Professor Rogers was recognized for
his outstanding work, earning a special commendation for
outstanding service in the Civil Division in 1985.
In 1987, Professor Rogers accepted a position as a
Fulbright professor at the Foreign Affairs College in Beijing,
the first of two Fulbright professorships in China. In China,
Professor Rogers met his future wife, Ying Juan, who,
unfortunately, could not be here today. As a spouse myself of a
Chinese immigrant, I appreciate the challenges Ying Juan has
experienced as an immigrant, and I am happy she was able to
become a member of our naturalized citizen community.
John Rogers' expertise is in international law,
administrative law, and constitutional law. He has published 20
Law Review articles and is currently working on his second
book.
He also testified before this committee in 2000 on the
ability of former American World War II POWs to obtain
compensation from foreign companies.
In conclusion, Professor Rogers and his wife have two
children, and I must confess I am a bit relieved to learn that
the only club to which he belongs is the Henry Clay Stamp Club
in Lexington.
I welcome Professor Rogers to the committee and hope he can
be expeditiously confirmed so that our circuit, the Sixth
Circuit, can get some of the relief that it badly needs.
Now I would like to turn it over to my colleague, Senator
Bunning, for his observations about our nominee.
PRESENTATION OF JOHN M. ROGERS, NOMINEE TO BE CIRCUIT JUDGE FOR
THE SIXTH CIRCUIT BY HON. JIM BUNNING, A U.S. SENATOR FROM THE
STATE OF KENTUCKY
Senator Bunning. Thank you, Senator McConnell.
Mr. Chairman, today I have the honor of helping to
introduce Professor John Rogers to the committee. By sending
his nomination to the Senate, the President has nominated a
first-class candidate to fill one of the vacancies on our Sixth
Circuit. I hope the Senate is able to confirm him quickly.
A quick look at his resume shows his strong qualifications:
Phi Beta Kappa graduate from Stanford and Michigan Law School,
member of the Michigan Law Review, and distinguished professor
at the University of Kentucky Law School for almost a quarter
of a century.
He has worked two stints in the Civil Division at the
Justice Department, working on appellate issues and drafting
government briefs for the Supreme Court. Twice he has taught
abroad, as you said, in China, as a Fulbright lecturer. And for
28 years, Professor Rogers served his country in the U.S. Army
Reserves and the Kentucky Army National Guard.
Although he is not from Kentucky originally, early in his
life Professor Rogers also made a smart decision by moving from
New York to the Commonwealth. Clearly, he possesses the wisdom
to sit on the Federal bench. His intellectual capabilities and
curiosity will serve him well as an appellate judge.
Professor Rogers has published, taught, and practiced on a
broad range of legal topics: international law, immigration
law, administrative law, constitutional law, and theories of
jurisprudence, just to name some of his interests. He is a top-
flight scholar who can definitely handle the academic rigors of
the appellate court.
As the committee knows, we are facing a judicial crisis in
the Sixth Circuit. Half the bench is empty. We desperately need
to fill those slots.
I appreciate the chairman--and I mean all the chairmen who
sit here, including our real chairman. I appreciate the
chairman scheduling this hearing, and I hope we can continue to
make swift progress towards confirmation.
I would also like to thank our chairman for helping us to
confirm nominees to fill the three openings at the district
level in Kentucky. It is already making a very big difference
for us back home.
Mr. Chairman, I will close by admitting up front that
Professor Rogers was one of several candidates that Senator
McConnell and I suggested to the President for the Sixth
Circuit. When we were looking for candidates, we wanted to find
the smartest legal eagles in Kentucky. I think you will soon
discover that Professor John Rogers definitely fills that bill.
He is a first-rate scholar who will make an excellent Federal
appellate judge.
Thank you, Mr. Chairman, and thanks to the committee.
Senator McConnell. Thank you, Senator Bunning.
Senator Santorum? Well, Senator Specter, and then Senator
Santorum, I guess.
Senator Specter. Go ahead, Rick.
PRESENTATION OF DAVID S. CERCONE, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF PENNSYLVANIA BY HON. RICK SANTORUM,
A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Santorum. Okay. I always defer to my senior
colleague, but I want to thank Senator Specter for deferring to
me.
It is a real honor for me to have the opportunity to
present to the committee Judge Dave Cercone. Judge Cercone is a
common pleas court judge in my home county of Allegheny County,
where Pittsburgh is. He has been a judge there since 1986, has
served with great distinction on that court. He is a graduate
of Westminster College in western Pennsylvania, in the little
town of New Wilmington, and he is also a graduate of Duquesne
University.
He is a part-time faculty member at Robert Morris College
and also at the University of Pittsburgh Graduate School of
Public International Affairs. He served, prior to that and his
appointment to the court, as assistant district attorney in
Allegheny County, and as a sole practitioner prior to that.
Judge Cercone is someone who I have known for a long, long
time. I knew him when I was practicing law back in Pittsburgh.
He is a man of tremendous respect in the community, as well as
his wife, who is an active member of the legal community in
western Pennsylvania. He is incredibly well respected on both
sides of the aisle as someone who is a great humanitarian, very
active in a lot of community organizations, including, in
particular, the Boys and Girls Club of Western Pennsylvania. He
is someone who--the only fault that I have been able to find in
Judge Cercone over the many years I have known him is his close
relationship with John Kasich, who he grew up with in McKees
Rocks, Pennsylvania, former Congressman Kasich from Ohio. But
beyond that small blemish in his record, he really is an
outstanding man in the community. He has been an outstanding
judge in Allegheny County, and I have no doubt that he will be
an outstanding judge in the court of the Western District of
Pennsylvania.
I will add that he is a Democrat, and he is someone who was
part of the arrangement that Senator Specter and I have worked
in Pennsylvania to make sure that we have no long strings of
just one party getting judges appointed to positions in
Pennsylvania. We take groups of four judges, and we have three
Republicans and one Democrat. We have four judges that have
been nominated from the Western District, and Judge Cercone is
the second nominee of that package to come forward. The first
was Joy Conti, a Republican. There are still two awaiting, Art
Schwab and Terry McVerry, which we hope the committee will act
on promptly. But I am very, very excited to be here today to
nominate someone who will prove to be, I think, one of our
finest--Judge Cercone.
Thank you, Mr. Chairman.
PRESENTATION OF DAVID S. CERCONE, NOMINEE TO BE DISTRICT JUDGE
FOR THE WESTERN DISTRICT OF PENNSYLVANIA BY HON. ARLEN SPECTER,
A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA
Senator Specter. With Senator Santorum's introduction,
there is nothing left for me to day, but that won't stop me
from speaking at length, nonetheless.
[Laughter.]
Senator Specter. Judge Cercone brings really a unique
record to this important position. Magna cum laude is a
testimonial to his academic ability. He served as a magistrate
court judge before coming to the Court of Common Pleas, which
is the court of record in Pennsylvania. And when he served as
district justice magistrate, he was appointed by the Supreme
Court to serve as administrative judge for the Criminal
Division, supervising 14 judges and over 200 court employees.
Senator Santorum has accurately stated what we have
accomplished in Pennsylvania, and I think it is very important
to have some balance on nominees. I think about the time from
President Nixon's administration through President George Bush
the Elder, and in the 24-year period, there was only 4 years
when President Carter had the opportunity to nominate able
young lawyers--or able lawyers, most of them young, who were
Democrats. And that kind of balance is important, and we have
worked out an arrangement which has been modeled after what
Senator Javits and Senator Moynihan had done in the 1970s, and
I think it is exactly the way things ought to be.
I must tell you it requires a lot of explanation, Judge
Cercone, when Republicans want to know why a Democrat is
appointed to the Federal bench. And Rick and I give them the
long explanations, and nobody is satisfied except the Democrats
who were appointed. But it works reciprocally, and that is the
way it should be.
Just one note on the personal side. Judge Cercone's uncle
was the president judge of the Pennsylvania Superior Court.
Judge Cercone was an assistant D.A. And I was the D.A. once,
but the best job I have had in public life was assistant D.A.
And arguing before the Pennsylvania Superior Court was really
an experience. As chief of the Appeals Division, we had about
90 cases before the superior court, and all we could do was
change the cover on the brief. They were all habeas corpus
cases. But I don't think any of the judges noticed that.
But Judge Cercone comes from a distinguished jurist family,
and I know he will do an outstanding job.
I am going to have to excuse myself, as I think the others
members will. We have Governor Ridge coming in to talk about
homeland security.
Thank you very much, Mr. Chairman de facto.
Senator McConnell. Thank you, Senator Specter.
Under the arrangement that we worked out with the majority,
we are going to have a brief--what I hope will be a brief
recess here before taking the second panel, which will be
Professor John Rogers.
[Recess 2:25 p.m. to 2:30 p.m.]
Senator McConnell. We are going to reconvene the session
here. Congressman Bartlett has arrived and would like to make
some observations about one of the judges.
Congressman feel free to have a seat and tell us about your
nominee.
PRESENTATION OF LAWRENCE GREENFELD, NOMINEE TO BE DIRECTOR,
BUREAU OF JUSTICE STATISTICS, DEPARTMENT OF JUSTICE, BY HON.
ROSCOE BARTLETT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF
MARYLAND
Mr. Bartlett. Thank you very much. I just returned from our
last vote of the day.
It is a pleasure for me to come over to the other body to
introduce and commend to you my constituent, Larry Greenfeld,
as the Director of the Bureau of Justice Statistics for the
United States Department of Justice. Larry and his wife,
Barbara, have been my constituents as residents of Howard
County in Maryland since 1990, where they have both been active
and respected members of the community. Barbara has been an
educator and administrator at Howard Community College for the
past 20 years and previously taught for the Howard County
Public School System. Their son, David, graduated from Atholton
High School in Howard County, received his B.A. from the
University of Maryland-College Park.
Mr. Greenfeld has compiled an exemplary and distinguished
record for more than 20 years at the Bureau of Justice
Statistics, including two periods of service as Acting Director
and Principal Deputy Director, Senior Executive Service, during
a 26-year career at the Department of Justice. His
contributions and expertise in the field of justice statistics
have been established through hundreds of publications and
presentations and have been widely recognized and honored by
his peers.
In January 1993, he was the recipient of the Peter P.
Lejins Award for Research from the American Correctional
Association, the highest award given for research in the field
of corrections, and was selected as the ``Best of the Best'' in
the field of corrections by Corrections Today Magazine. He has
served on numerous national panels and commissions, including
providing assistance to the Surgeon General's National Advisory
Commission on Drunk Driving. In 1996, he received the Alumnus
of the Year Award from the Department of Criminology and
Criminal Justice at the University of Maryland.
Once again, I am pleased and honored to introduce Larry
Greenfeld. Thank you very much.
Senator McConnell. Thank you very much, Congressman. We
appreciate your coming by, and we are hope--I am hoping to be
graced with the presence of Senator Feingold here at some
point, so we will have what I hope will be another brief
recess.
[Recess 2:32 p.m. to 2:44 p.m.]
Senator Feingold. [Presiding.] I will call the committee
out of recess and back into order. Let me thank Senator
McConnell for chairing the hearing and moving things along in
my absence. I also want to thank Senator Feinstein for helping.
I was at an executive session of the Foreign Relations
Committee that just concluded.
As I understand it, we have completed the first panel. The
Members of Congress have had an opportunity to testify on
behalf of the different nominees, so now we will move on to
panel two.
Senator Feingold. I would now ask Professor Rogers, the
witness for the second panel, to come forward.
Professor Rogers is President Bush's nominee to the United
States Court of Appeals for the Sixth Circuit. Professor Rogers
graduated from the University of Michigan Law School. After
graduation, he spent 4 years working in the Appellate Section
of the Civil Division of the Justice Department, a section to
which he later returned in 1983 for 2 more years.
He has been a law professor at the University of Kentucky
College of Law since 1978. He also has had an extensive
military career, first in the U.S. Army and later in the Army
Reserve and Kentucky Army National Guard.
We welcome you, Professor, and congratulations on your
nomination. Will you please stand and raise your right hand to
be sworn? Do you swear or affirm that the testimony you are
about to give before the committee will be the truth, the whole
truth, and nothing but the truth?
Mr. Rogers. I do.
Senator Feingold. Thank you, Professor Rogers. If you would
like to make your opening statement and introduce anybody that
you would like, you may do so now.
STATEMENT OF JOHN M. ROGERS, OF KENTUCKY, NOMINEE TO BE CIRCUIT
JUDGE FOR THE SIXTH CIRCUIT
Mr. Rogers. Thank you very much, Mr. Chairman. It's a great
honor to be here, and I am very excited. I regret that my wife
and children are not here. They would have loved to have been
here.
I want to thank you and Senator Leahy for scheduling this
hearing and thank you for chairing it, and I am eager to take
your questions.
Senator Feingold. Very good. We will proceed with 7-minute
rounds of questions. Let me begin.
As you know, many individuals nominated to the Federal
bench over the years have faced questions about their views on
certain controversial topics, particularly if they have written
or spoken about these topics. Almost invariably, in an effort
to allay concerns that Senators might have about their views,
part of their answer is to say that they will respect the
rulings of the Supreme Court and apply them as a matter of
stare decisis, even if they don't agree with them. We have an
unusual situation here, because you wrote a very interesting
article in 1995 that I would like to ask you a little bit
about. The article is not really about a substantive area of
law; it is, rather, about the principle of stare decisis.
In your article entitled ``Lower Court Application of the
`Overruling Law' of Higher Courts,'' you assert that a lower
court, when faced with case law it thinks a higher court would
overturn were it to consider the case, should then take
responsibility upon itself and go ahead and reverse the
precedent of the higher court on its own. As we read it, the
idea is that the Supreme Court, for instance, has rules it
follows about when and whether to overturn precedent, what you
call ``overruling law.'' Your article suggests that lower
courts should follow this body of law in the same way they
follow other laws of the higher court and, therefore, lower
court judges should reverse higher court precedent on their own
whenever they think that the higher court would do so.
Professor Rogers, have I at least reasonably correctly
described your views in this article? Do you still subscribe to
them?
Mr. Rogers. I understand how that article might be
interpreted that way. That article, I would stress, was in the
Legal Theory journal. It was very abstract, and I used some
language that I think could be misconstrued.
I want to assure you and all the members of this committee
that I strongly believe that it is the duty, actually the legal
duty of a court of appeals judge to follow the holdings and
decisions of the Supreme Court of the United States.
Senator Feingold. Let me just pursue it a little bit, then.
Mr. Rogers. Certainly.
Senator Feingold. I appreciate that answer. What factors
would you use, if confirmed to the Sixth Circuit, to determine
whether the Supreme Court will overturn precedent in a
particular case? And what----
Mr. Rogers. I think----
Senator Feingold. Let me just finish.
Mr. Rogers. I'm sorry.
Senator Feingold. What weight, for example, will you give
to the political views of individual Justices as compared to
the views of Justices who made the decision that would
otherwise bind you?
Mr. Rogers. That's an eminently fair question, Mr.
Chairman, and I appreciate having the chance to respond to it.
I think--that was a theoretical article dealing with something
that would only happen very rarely.
I would like if I could give a kind of concrete example. It
is a very abstract article. A concrete example would be Brown
v. Board of Education, which rejected the separate but equal
doctrine in the area of public education. A year later, there
was a case that involved separate but equal in the area of
public transportation.
The Court of Appeals for the Fourth Circuit in that case I
guess conceivably could have said, well, all they have is a
holding with respect to education and they don't have a holding
with respect to public transportation; and there is an old
Plessy v. Ferguson separate but equal decision with respect to
public transportation, so, therefore, we are just going to say
that there is separate but equal in that area. I think that
would be wrong. That is not what the Court of Appeals for the
Fourth Circuit did in that case because it was clear, very
clear, that separate but equal was rejected across the board in
theory, and no one could--it fatally undermined, if you will,
Plessy v. Ferguson, although it was arguably distinguishable
from Plessy v. Ferguson.
In that type of situation, where it is clear that the
Supreme Court would not adhere to an old precedent that it--not
the lower court, but that it--has undermined or departed from,
then in that case it makes sense for the lower court to follow
what it perceives the Supreme Court to have done.
I think it would be a very unusual type of situation, and,
again, I would reassert--and it is also present in that
article, actually--that there is a strong legal obligation--and
that was the purport of some of my arguments in that article--
there is a strong legal obligation on the part of lower courts
to follow the most applicable precedents of the Supreme Court
of the United States.
Senator Feingold. I appreciate that answer. You certainly
seem to suggest a narrower basis for rejecting precedent than
your article suggests.
Mr. Rogers. That is absolutely fair enough, sir.
Senator Feingold. It is somewhat reassuring that you use
that example, and I think you have attempted to assure the
committee that you would follow the precedents and uphold the
Constitution.
Let me ask you about another aspect of that article. You
assert the following in the article: Despite what they may say,
appellate and Supreme Court judges are at least to some extent,
and perhaps entirely, voting policy preferences in a way that
is wholly unpredictable unless the policy views of individual
judges are taken into account.
You go on to say: Perhaps, don't be shocked, judges vote on
First Amendment issues, federalism issues, or search and
seizure issues at least in part according to their political
preferences. In fairness, I studied the writings of others in
college that suggested very much the same with regard to
judges. So, it is not something I have never heard before.
But, I think you would agree that one of the most
fundamental underpinnings of our democracy and one of the many
institutions that proves the genius of our Founders is our
independent judiciary. The system of lifetime appointments
allows judges to be free to base their decisions on nothing but
the law and their own judgment, free of the influence that
political interference can bring. I note that you have been a
member of the Republican National Committee since 1970.
Given your academic writings, what assurances can you give
the committee that you will fairly apply the law based on the
merits of a particular case, regardless of your policy
preferences and political views?
Mr. Rogers. Absolutely. I flatly support the idea that
judges should decide based on the law and not on the basis of
their political views. And I think in context, that little
quote from my article is, at least intended to be, a
characterization of an argument that I don't think is
appropriate. Maybe it happens. Maybe as a political science
matter it happens sometimes. And that's what I was trying to
respond to people who I thought might disagree with the
esoteric arguments that I was making in that theoretical
article.
But I strongly support and have always strongly supported
the idea that the very idea of what a judge is doing, an
Article III judge, or really any judge is doing, is deciding
what the legislature and the Framers have decided and applying
that, rather than using their own policy preferences. I think
that's what judicial discipline is all about, is not trying to
come to a result that the judge thinks is the better result,
but trying to come to the result that the legislature or the
Framers thinks is the proper result.
Senator Feingold. Thank you, Professor. That completes my
first round.
Senator McConnell?
Senator McConnell. Thank you, Mr. Chairman.
Just following up on that, your article, ``Lower Court
Application of the `Overruling Law' of Higher Courts,''
obviously could be misinterpreted by some people. Some would
believe it stands for the proposition that if a lower court is
faced with case law, it thinks a higher court would overturn,
then the lower court should take the responsibility upon itself
and go ahead and reverse the precedent of the higher court on
its own.
But we all know a lower court can't, of course, reverse the
precedent of a higher court. Furthermore, we respect to the
fidelity to precedent that a lower court must exhibit, I take
your article to have the exact opposite point, that is, lower
court adherence to binding precedent is so critically important
to our judicial system that lower courts have a duty to strive
to make sure that they correctly determine and follow governing
precedent.
That very strong obligation is not always easy to discharge
when it appears that a higher court has changed its precedent,
whether, for example, through multiple decisions that seem to
render a longstanding interpretation a nullity--you cite an
example of that--or through decisions that seem to show that a
prior precedent has been sub silentio overruled.
So I would like to clear up some of the confusion. Is it
your position that judges must always follow binding precedent?
Mr. Rogers. Yes, absolutely.
Senator McConnell. A lower court can't, of course, reverse
the precedent of a higher court, can it?
Mr. Rogers. No, it cannot.
Senator McConnell. Is it your position that judges should
follow precedent even when the precedent seems to the judge to
be unwise or at odds with his personal beliefs or political
philosophy?
Mr. Rogers. Emphatically, yes.
Senator McConnell. In fact, did you not write in that same
article that our legal system ``would not work well if lower
courts persisted in their own sincere legal analysis,
regardless of the decisions of higher courts''?
Mr. Rogers. Yes, Senator, I believe that's in there.
Senator McConnell. And, in fact, did you not also write in
that article that, ``It follows judges may, indeed should
follow the law as appellate courts determine it in order to
apply, per their oaths, the law of the system that set up their
courts''?
Mr. Rogers. Exactly.
Senator McConnell. Was one of the points in your article
that higher courts sometimes change precedents without always
expressly saying so?
Mr. Rogers. Yes, sir.
Senator McConnell. And that it is the job of the lower
court to try to determine if there has been a change in
precedent in order for the court to be faithful to that new
precedent?
Mr. Rogers. That's the idea, yes, sir.
Senator McConnell. And if there has been a change in
precedent, then courts should try to determine the scope of
that change?
Mr. Rogers. Yes, exactly. Thank you.
Senator McConnell. Thank you, Professor Rogers.
Thank you, Mr. Chairman.
Senator Feingold. Thank you, Senator McConnell.
Professor, one of the traits I am looking for in judges is
open-mindedness and fair-mindedness I like judges to be willing
to listen to arguments and, where appropriate, change their
minds about an issue if the law and the facts warrant it.
Can you give me an example from your legal career where you
have changed or reversed a position based on the arguments that
you have heard in court or the information that a client or
another lawyer has presented to you?
Mr. Rogers. Mr. Chairman, I'm primarily a law professor,
and I think maybe the best example of my open-mindedness is how
I try to conduct my classes. I have students who sometimes will
take me on, and those tend to be the best classes that I teach.
And I can think of examples where I asserted something, a
reading of a particular case, and a student questioned it, and
we went back and forth for several times until finally I had to
agree that what the student said was the best possible--was the
better reading of the case. I can think of several examples
where that has happened.
So, yes--would you like specifics of--I mean, I can think
of a case where I read, for instance, the holding of the Garcia
case, Garcia v. SAMTA, as never allowing a court to say that
the Federal Government could not regulate the States, that the
courts were completely out of it, that it was purely a
political check. And I had a student--I remember her name is
Mary Ann Both. She's a lawyer now, a public interest lawyer in
Massachusetts, and she said, no, there's room in that--she
wasn't advocating for it, but she said there's room in the
language of that decision to--at a certain point for the
Supreme Court to come back. And I said, well, you know, I just
don't read it that way. And then we went back and forth, and in
a logical, careful way, she demonstrated to me that, yes, there
was room in the opinion for the Supreme Court to come back,
and, indeed subsequently, as you know, the Supreme Court has--
perhaps not in the way she anticipated, but has put some limits
on it.
Now, I want to say I remember that clearly because that was
one of the best classes I've taught.
Senator Feingold. Well, I am pleased to hear that example,
because all we can do here is examine people on their record.
It is great to be able to get a little sense of how people
think, because you are going to be making such important
decisions for us.
Some of the most beloved judges in our history are judges
who have stood up to popular sentiment to protect the rights of
minorities or people whose views make them outcasts or even
sometimes pariahs.
Can you give me an instance in your professional career
where you took an unpopular stand or represented an unpopular
client and stood by it under pressure?
Mr. Rogers. I'm thinking, Mr. Chairman. Most of my clients
were Government agencies. But----
Senator Feingold. Certainly the unpopular----
Mr. Rogers. I was going to say, I've had some pretty
unpopular clients. I had one case where--it was a Federal Tort
Claims Act case that involved the CIA's opening of the mail in
New York, which was pretty unpopular and illegal. But they did
it, and they only opened the mail that came through at night.
They didn't open the mail that came through during the day. But
there was a suit against the United States for $1,000 per
letter, and the Justice Department had to defend that suit and
try to keep the treasury from being depleted by--you know,
there were millions of these letters, so it was an important
financial case, and I had to litigate that in the Second
Circuit. And it was subjected to criticism in the newspapers. I
was kind of chewed out on the way out of the courthouse by
opposing counsel for even representing the United States in
that case. So I suppose that's an example of what you're
talking about.
Senator Feingold. Fair enough. During your second stint at
the Department of Justice from 1983 to 1985, you represented
different Federal agencies in a number of cases involving
foreign affairs and international law.
Mr. Rogers. Yes, sir.
Senator Feingold. In particular, you seem to have
specialized in handling the Government's defense of appeals in
cases involving the propriety of U.S. actions in Latin American
countries, including Nigeria, Honduras, and Grenada.
For example, you defended U.S. Government officials and
others in a case brought by plaintiffs challenging the covert
support of rebel activity in Nicaragua.
What are your views regarding the appropriate separation of
powers between the courts, the executive branch, and the
legislative branch with respect to such foreign policy matters
and international law?
Mr. Rogers. Well, Mr. Chairman, I wrote a book on that, and
I'm not sure how to encapsulate that whole book. I guess,
generally speaking, international law is a very important part
of foreign policy. But international law is something that, in
the final analysis, has to be determined by the political
branches and not by the courts. And I think that's a general
thread that underlay some of the more technical doctrines that
we used when we litigated those cases.
Senator Feingold. Well, if courts should not resolve
disputes between the political branches under the political
question doctrine, how can disputes such as the Reagan
administration's support of the contras against the will of
Congress or President Bush's withdrawal from the ABM Treaty
without congressional approval be resolved?
Mr. Rogers. Well, under the political question doctrine, by
definition, they have to be resolved through the political
process. That's the idea.
Senator Feingold. In writings, you've made the case that
the United States courts--and I think you just referred to
this--should interpret statutes in a way that is consistent
with public international law. I assume you would claim that
this approach must apply as well to international human rights
obligations, including customary human rights norms?
Mr. Rogers. ``Must be'' may be a little bit too strong. The
Supreme Court has said that statutes of the United States
should be interpreted in accordance with our international
obligations, if possible; not that that's a requirement, but
that that's a canon of construction.
If a court could ascertain that there was an international
obligation with respect to a particular human rights issue,
then that might inform the interpretation of a statute. But
it's up to Congress to pass the statute, and if it doesn't want
that, it has to be clear. This is what the Supreme Court says
courts should do. In accordance with my answers to your
previous question, that's what's appropriate.
Senator Feingold. Let me ask you another, more specific,
question in that area, consider the complicated case in which
the United States has taken a non-self-executing reservation to
a human rights treaty, as we have done with most of the core
human rights treaties that we have ratified. Do you agree that
such a human rights treaty, while not providing a direct cause
of action in a Federal court, should nonetheless guide the
interpretation of U.S. law or policy?
Mr. Rogers. When you say ``guide,'' I'd have to say--I'm
reflecting on the writings in my book. They might affect the
interpretation of a statute that's otherwise ambiguous, yes.
That would include that.
Senator Feingold. All right. Senator McConnell?
Senator McConnell. I think I will pass on this round, Mr.
Chairman.
Senator Feingold. I am completed with my questions. As I
understand it, we are about to have a vote. So let me thank you
very much, Professor Rogers.
Mr. Rogers. Thank you very much.
Senator Feingold. I think--are we pretty certain the vote
is going to start?
Well, I think we will move on to the next panel. Thank you
very much, Professor.
Senator McConnell. Thank you.
[The biographical information of Mr. Rogers follows.]
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Senator Feingold. I would now like to invite our third
panel to come forward, and I apologize in advance that we may
have to recess briefly during a vote.
The panel that is coming forward: Judge David Stewart
Cercone, Judge Kenneth Anthony Marra, Judge Morrison Cohen
England, Jr., and Lawrence Greenfeld.
Welcome, and congratulations to each of you on your
nomination. Will you please stand and raise your right hands to
be sworn? Do you swear or affirm that the testimony you are
about to give before the committee will be the truth, the whole
truth, and nothing but the truth?
Judge Cercone. I do.
Judge England. I do.
Judge Marra. I do.
Mr. Greenfeld. I do.
Senator Feingold. I thank all of you. We will start with
Judge Cercone. Judge David Stewart Cercone, who has been
nominated to the U.S. District Court for the Western District
of Pennsylvania, is a graduate of Westminster College and
Duquesne University School of Law. After law school, he served
as Allegheny County assistant district attorney and then as a
State magistrate judge. He was first elected to be a judge in
the Allegheny County Court of Common Pleas, the State trial
court bench, in 1986 and has served on that court ever since.
He is a native of Pittsburgh, Pennsylvania.
We welcome you, Judge, and you may proceed with your
opening remarks and any introductions you would like to make.
STATEMENT OF DAVID S. CERCONE, OF PENNSYLVANIA, NOMINEE TO BE
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Judge Cercone. Thank you. Thank you, Mr. Chairman, and I do
appreciate this opportunity to appear before the Judiciary
Committee. Senator McConnell, thank you very much, and my
thanks to Senator Leahy for scheduling this committee meeting.
With me this afternoon is my wife, Mary Ann Cercone; my
son, Spencer; my son, Stephen. My youngest son, Christopher,
was here. He's 5 years old and at the risk of being the first
5-year-old ever held in contempt of Congress, I decided to have
him go down to the coffee shop.
Senator Feingold. I hope he is having a good time.
[Laughter.]
Senator Feingold. Anything else?
Judge Cercone. That's all. Thank you.
Senator Feingold. Thank you very much, sir.
Judge Kenneth Anthony Marra, who has been nominated to
serve on the U.S. District Court for the Southern District of
Florida, graduated from Stetson University College of Law. Upon
graduating from law school, he became a trial attorney with the
Justice Department. After leaving the Department of Justice,
Judge Marra practiced law in Washington, D.C., and West Palm
Beach, Florida. In 1996, Judge Marra was appointed to Florida's
Fifteenth Circuit Court bench by the late Florida Governor
Lawton Chiles.
We welcome you, Judge, and you may proceed with any
introductions or any opening statement you would like to make.
STATEMENT OF KENNETH A. MARRA, OF FLORIDA, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA
Judge Marra. Thank you, Mr. Chairman. Also, I would like to
thank you, Senator Leahy, and Senator McConnell for having this
hearing and scheduling me before you. It's a pleasure for me to
be here.
I would like to introduce the members of my family. I have
with me my wife, Louise; my children Andrew, Joanna, Peter,
Stephen, David, Mark, John Michael, and Annalise. My mother,
Phyllis Marra, is here; my sister, Barbara Matarese; my
brother, Alexander Marra; my niece, Julie Matarese; and my
daughter's fiance, Christopher Iaciofoli.
Thank you. I have no opening remarks, and I'm prepared to
answer any questions from the Chair and the members of the
committee.
Senator Feingold. I thank you very much, Judge, and I would
at this point ask unanimous consent that statements in support
of Judge Marra from Senator Bob Graham and Senator Bill Nelson
be placed in the record, without objection.
Our next nominee is Judge Morrison Cohen England, Jr., who
has been nominated to serve as U.S. District Judge for the
Eastern District of California. He is a graduate of the
University of the Pacific's McGeorge School of Law. After
graduating from law school, he practiced law in Sacramento,
California. In 1996, Judge England was appointed by Governor
Pete Wilson to be a Sacramento Municipal Court Judge and then
elevated to Superior Court a year later. In addition to holding
down these demanding day jobs since 1988, Judge England has
been a member of the United States Army Reserve, serving in the
Judge Advocate General Corps.
Judge England, welcome. You may make any opening statement
or introduce anyone.
STATEMENT OF MORRISON COHEN ENGLAND, JR., OF CALIFORNIA,
NOMINEE TO BE DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
CALIFORNIA
Judge England. Thank you, Senator Feingold. I want to first
of all thank Senator Leahy for scheduling this hearing and also
thank you and Senator McConnell for being present at this
hearing.
I would also like to thank Senator Feinstein for her
introduction today and also for the kind words I have received
moments ago from Senator Boxer.
I would like to introduce my wife, Nancy England, who has
also joined me here today, and I'd also like to introduce a
friend, Judge Eric Taylor, from the Los Angeles County Superior
Court, who was also able to attend today at the last minute.
I would like to thank you once again for the opportunity to
be here, and I do look forward to answering any and all
questions that the committee may present to me today.
Thank you very much.
Senator Feingold. Thank you very much, and welcome, of
course, to all the guests that are with the nominees today.
Next we will turn to Mr. Lawrence Greenfeld. Mr. Greenfeld
has been nominated to serve in the Department of Justice as the
Director of the Bureau of Justice Statistics, the Nation's
primary source for criminal justice statistics.
Mr. Greenfeld is a native Washingtonian who has had a long
career at the Department of Justice beginning in 1976, when he
worked as a social scientist with the National Institute of
Justice. He worked for a decade as the chief of the Corrections
Statistics Program and over time has risen to hold various
deputy director positions within the Bureau of Justice
Statistics. He has twice been Acting Director of the Bureau of
Justice Statistics, once during the first 21 months of the
Clinton administration and again during the previous 17 months
of the current Bush administration.
We welcome you, Mr. Greenfeld. Congratulations on your long
career of public service and on your nomination. You may make a
statement or introduce whomever you wish.
STATEMENT OF LAWRENCE GREENFELD, OF MARYLAND, NOMINEE TO BE
DIRECTOR, BUREAU OF JUSTICE STATISTICS, DEPARTMENT OF JUSTICE
Mr. Greenfeld. Thank you, Mr. Chairman. It is a pleasure
and an honor to be here today and to have been nominated by the
President to be Director of the Bureau of Justice Statistics
and have the confidence of the Attorney General and the
Assistant Attorney General in charge of the Office of Justice
Programs.
I also want to thank Congressman Bartlett who offered some
very kind words about me a few minutes ago.
I do want to introduce my wife, Barbara, who is here, and
my wife's aunt, Sara Rothman, who is here. And I'm delighted,
again, to have this opportunity. BJS is a superb agency with
wonderful people that we're blessed with the best
statisticians, I think, in public service. And I'm ready,
willing, and able to answer all of your questions.
Senator Feingold. Very good. I thank you. Since the vote
hasn't started, we will just keep going forward. We will start
with 7-minute rounds of questions. I will start with Judge
Cercone.
I noticed Judge, that you imposed the death penalty in
criminal cases four times in published cases. Two of those
death sentences were reversed on appeal. As you know, Governor
Ryan in Illinois has instituted a moratorium on executions as a
result of certain inadequacies in the State's death penalty
system as shown by the fact that 13 individuals sentenced to
death in that State were exonerated.
There have been four exonerations in Pennsylvania,
including a recent exoneration which actually was the 101st
exoneration in the country since 1977.
First, I would like to ask you: Do you know exactly how
many times you have imposed the death penalty?
Judge Cercone. Senator, when you ask that question, I'm
assuming that you mean in light of a jury's determination that
the death penalty should be imposed and I as a judge formally
impose the death penalty as required by law in light of a
jury's finding?
Senator Feingold. That would be a fair interpretation.
Judge Cercone. In total, I believe that I imposed the death
penalty four times.
Senator Feingold. Okay. Do you have any concerns regarding
the administration of the death penalty in Pennsylvania? For
example, do you believe that any of the recent recommendations
made in Illinois to make the sentencing of an innocent person
to death less likely are applicable either to Pennsylvania's
system or to the Federal system?
Judge Cercone. Of course, I have concerns about it. I
participated in the Pennsylvania Economy League's study of the
Allegheny County Public Defender's Office, and one of the
inadequacies that I observed and that I passed along to this
independent organization studying the county's public defender
office is that lawyers were overworked when it came to serious
cases like the death penalty case; there were insufficient
funds for such things as expert witnesses or investigation. And
I passed that along to the independent organization that was
reviewing this.
Senator Feingold. Thank you.
Let me turn to Judge Marra. Over the last 25 years--oh,
there is the vote. If there is no objection, I think I will
simply recess at this point and return right away to continue
the----
Senator McConnell. May I suggest that you leave first, I
ask some questions? Would that--it might save some----
Senator Feingold. I am concerned about that because I may,
Senator McConnell----
Senator McConnell. Why don't we go vote?
Senator Feingold. You are a very smart Senator, and I want
to make sure----
Senator McConnell. Why don't we just go vote?
Senator Feingold. Yes, I appreciate your willingness to
help, but I think we are just going to recess.
[Recess 3:13 p.m. to 3:34 p.m.]
Senator Feingold. I will call the committee back to order,
and I will resume my question period, first round.
Judge Marra, over the last 25 years, you have served--you
have had a interesting and varied legal career as a trial
attorney with the Department of Justice and in private practice
and as a judge in the Palm Beach County Circuit Court. The vast
majority of your experience, however, has been in the area of
civil litigation. As a judge, you have only handled criminal
matters for approximately the last 2 years.
As you know, of course, a significant portion of the
Federal judicial docket in South Florida deals with complex
criminal and immigration matters. Please tell the committee how
your legal experience has prepared you to adjudicate complex
criminal cases in Federal court and, if you are confirmed, how
you will work to get up to speed on Federal criminal procedure
and substantive law for the criminal matters that will be
before you.
Judge Marra. Yes, Mr. Chairman. As you just mentioned, I
have been exclusively dealing with criminal cases for the last
2 and a half years, and I think that experience has prepared me
well for handling whatever matters come before me on the
Federal district court.
I deal with constitutional issues on a regular basis,
search and seizure areas, right to counsel areas, Fifth
Amendment matters, and I believe that experience has prepared
me well to undertake the responsibilities in the Federal
district court.
Senator Feingold. Thank you.
In McCaw Cellular v. Kwiatek, the jury found the defendant
corporation liable for disability discrimination based on the
plaintiff's HIV-positive status and awarded him $1 million in
punitive damages, but you reduced the punitive damage award by
90 percent to $100,000. I have a couple of questions in that
connection.
What was the basis for this reduction? Do you believe it is
proper for a judge to intervene in such cases and disturb jury
verdicts? Do you believe that jury-awarded damages should
always be subject to immediate judicial review and can you give
me a sense of the factors that a district judge should use in
making these kinds of determinations?
Judge Marra. Well, in that particular case, Mr. Chairman,
there was a statutory cap on punitive damage awards under the
Florida Civil Rights Act at $100,000, so the basis for my
reduction in that case was the statutory cap. But obviously all
jury determinations on damages are subject to review on post-
trial motions, and I would obviously consider all of the
relevant factors and applicable law in making those
determinations.
Senator Feingold. Okay. Do you believe there is a
constitutional right to privacy? If so, please describe what
you believe to be the key elements of that right, and if not,
please explain that.
Judge Marra. Well, Mr. Chairman, the United States Supreme
Court has articulated on numerous occasions that there is a
right to privacy which is protected from infringement by both
the State and the Federal Governments. And I certainly as a
sitting judge now in the State courts and as a United States
district court judge would uphold those precedents and apply
them appropriately and accurately.
Senator Feingold. What do you believe to be the key
elements of that right?
Judge Marra. The courts have recognized certain decisions
which they believe are so personal and private and are related
to aspect of liberty that the Government should not be allowed
to infringe except in very limited circumstances.
Senator Feingold. Thank you, Judge.
Now I will go to Judge England. Judge England, one case you
cited as among your most significant cases involved a First
Amendment suit by several members of the California Bar
Association who claimed that some of their mandatory dues were
being misused to fund political activities. In your decision in
this case you relied on what some would see as a more stringent
standard than that set forth by the Supreme Court in Keller v.
California State Bar. You found that several bar association
activities such as programs intended to increase minority
membership, the Conference of Delegates, a mentor program,
pairing attorneys with parolees, and most lobbying on State
issues were not related to the core purposes of the
organization and, therefore, that members' First Amendment
rights were violated by using mandatory dues to fund such
programs.
Please tell the committee why you employed a stricter
standard in this case than that set forth by the Supreme Court,
and please explain your understanding of the proper role of the
Federal judiciary in protecting individual rights guaranteed by
the Constitution or Federal statutes.
Judge England. Thank you, Mr. Chairman.
Mr. Chairman, with respect to that particular case, it was
my interpretation of Keller v. State Bar of California, the
United States Supreme Court case, that I utilized in making
that determination. In that case, we were looking at a
situation where the members of the California State Bar were
required by law to be a member of the organization in order to
practice law. As such, it was a mandatory organization.
The United States Supreme Court in a number of cases, (not
only the Keller case but also in labor relations cases) had
indicated that when an individual is required as a matter of
law to be part of an organization, the dues that are paid for
that organization should be related to the operation of the
organization.
Now, I would state and I did state in the opinion that
various activities that the California State Bar was engaged in
were, in fact, very laudable activities. However, the fact that
they were laudable activities and were for good purposes did
not necessarily mean that everyone who was a member of that
organization should be required to fund those activities. That
was an issue involving the First Amendment right of free
speech.
I simply went through each of the activities that were
listed and that were challenged by the plaintiffs in the case
and applied what I felt was the Federal standard under the
First Amendment and the Keller case. I then made my decisions
as to each of the particular programs. Some I found did not
qualify and, therefore, should not be chargeable, but there
were a number of others which I did, in fact, find were
chargeable.
Senator Feingold. Could you say a bit about your
understanding of the proper role of the Federal judiciary in
protecting individual rights guaranteed by the Constitution and
Federal statutes?
Judge England. I think that it is clearly incumbent upon
any Federal judge, at whatever level, to be very mindful of the
United States Constitution, and in the case of a district court
judge, to be very mindful and cognizant of the appropriate
superior courts or appellate courts and their decisions.
It is important that the district court judge understand
those precedents and follow those precedents and the law as it
is written and as it has been determined over the past and make
those the appropriate standards for making the decisions.
Senator Feingold. I will start another round. I don't see
Senator McConnell.
Again, to Judge England, do you believe there is a
constitutional right to privacy?
Judge England. The United States Supreme Court has made it
clear in numerous opinions, Mr. Chairman, that the right of
privacy is a fundamental right, and I do, in fact, believe that
I will follow the Supreme Court's determination and decision
making in that process.
Senator Feingold. Okay. Thank you very much.
Let me ask each of the district court nominees the two
questions that I asked Professor Rogers. First, as I said
before, one of the traits that I am looking for in judges, that
we all look for, is open-mindedness and fair-mindedness. I
would like the judges to be willing to listen to arguments and
change their minds about an issue if the law and the facts
warrant it. I will start with Judge Cercone. Judge Cercone,
could you give me an example from your legal career where you
have changed or reversed a position based on the arguments that
you heard in court or the information that a client or another
lawyer has presented to you?
Judge Cercone. If I could say generally, first, I think the
record of trials in my courtroom will show that I oftentimes--
sometimes even on my own motion--will reverse my own decisions.
I once asked a question of a witness to which a lawyer
objected, and I sustained the objection to my own question.
[Laughter.]
Judge Cercone. So, Senator, I understand that open-
mindedness is very important, and that is a trait that I hope I
have a reputation for having.
An example would be sometimes when I handle criminal cases
in sentencing, when I hear the facts of the case and read the
pre-sentence reports, sometimes I form a general view as to
what an appropriate sentence should be. But after I conduct a
sentencing hearing, I hear from witnesses, including defense
witnesses and the defendant. And if I'm convinced that such
factors such as true remorse and other indications of
rehabilitation are present, I will change my mind as to what my
initial thoughts were as being one example.
Senator Feingold. Thank you.
Judge Marra?
Judge Marra. Thank you, Mr. Chairman. Just recently, a case
I dealt with dealing with search and seizure issues, where I
made an initial ruling and then upon further argument reversed
the ruling. So I believe--and I can give you the specifics if
you'd like, but I believe that I am very open-minded and I have
a reputation of being open-minded and fair and would not take
offense to motions for rehearing or reconsideration after I
made a ruling, as I did in that particular case.
Senator Feingold. Thank you, Judge.
Judge England?
Judge England. Yes, Mr. Chairman. I think it is very
important as a general rule that a judge not be so welded to a
particular position or theory that he or she will not be able
to listen to other ideas as well. I'm not able to come up with
any specific times that I have changed my mind as to a
particular issue, but I can in general terms tell you that I
know that there has been at least one time in a sentencing
issue, that after going through the initial pre-trial review of
the case, hearing the actual trial as it went on in my
courtroom, and as Judge Cercone indicated, listening thereafter
to the other issues that came in with the family of victims and
other things, where my decision changed as to how I was going
to render a sentence. And I did make a change at that
particular time.
There are more facts that I could give, but, unfortunately,
the case is still pending at the appellate level, so I would--
I'm not able to give you more details at this time. But I think
that's something that we all have to be aware of and not become
so rigid in our mind-set that we become, as has been noted, a
potted plant sitting on the bench.
Senator Feingold. I have one more question for each of the
judicial nominees and then some questions for Mr. Greenfeld,
but at this point, I will turn to Senator McConnell, if he
would like a round of questions.
Senator McConnell. Yes, Mr. Chairman. There are questions I
could ask, but as a supporter of the administration, I have the
general view that you guys have probably been through a lot of
gauntlets to get to this point. You have first managed to get
past the Justice Department. Second, you have managed to get
past the ABA. Third, you have managed to get past the Judiciary
Committee staff to the point where you now have a hearing.
So I am satisfied, not having heard anything to the
contrary, that all of you are qualified for the positions to
which you have been nominated. So let me just congratulate you
and hope that you will do an outstanding job in the positions
to which you have been nominated and to which I hope you will
soon be confirmed.
Thank you, Mr. Chairman.
Senator Feingold. Thank you, Senator McConnell, and let me
start another round and ask each of the three judicial nominees
if you can tell me of an instance in your professional career
where you took an unpopular stand or represented an unpopular
client and stood by it under pressure. Judge Cercone?
Judge Cercone. I can only think of one example, and I went
on the bench when I was 33, so I didn't have much of a legal
career. So it did occur when I was a judge. And there was an
instance where there was a defendant who was charged with
recklessly endangering people by virtue of his horrific
driving. He had gone on to--driven the wrong way on a ramp to a
major highway in Pittsburgh and had endangered the lives of a
lot of people. When he was apprehended by the police, it was
alleged that he was--that there was some police brutality
involved.
When the case came before me, the only issue was the
question regarding his driving and what an appropriate sentence
should be for that. There was some sentiment in the community
that because, allegedly, he had been beaten up by the police
that that should come into play in my sentencing him on his
driving record and the facts of that case. And, besides, he had
also a terrible driving record, I think, of about 11
convictions within the past year or two.
I determined that what happened between him and the police
would be dealt with on another day in another courtroom on a
different action, that it really wasn't for me to decide that
issue. And as I said, there were--there was at least one
editorial on the point which sort of painted the defendant in a
light where he should have been given consideration for that,
and I deemed it irrelevant to the proceedings before me.
Senator Feingold. Thank you, Judge.
Judge Marra?
Judge Marra. Thank you, Mr. Chairman. I think the best
example that I can give the committee is when I was in private
practice here in Washington, D.C. Our firm represented an
Indian tribe in the State of New York by the name of Cayuga
Indian Nation of New York, and we brought a lawsuit on behalf
of the Cayuga Indian Nation seeking to regain 100 square miles
of Central New York State from approximately 5,000 landowners.
And I can tell you that that was not a very popular lawsuit to
be involved with, and we brought that suit and prosecuted it
vigorously on behalf of our client.
Senator Feingold. I am sure you have heard a lot about
those kind of cases as well. Thank you, Judge.
Judge?
Judge England. Yes, Mr. Chairman, I think that the case I
can bring up, the easiest, would be the case involving the
State bar. As I'm sure that you can understand, there were a
number of groups that were very adamant about whether or not
the State bar should be involved in certain positions, if you
will, and felt that there were some things that the State bar
should not be involved in, whether it be minority issues,
women's issues, parole issues and those types of things. I
received quite a bit of comment, mostly written in the press,
and various bar journals as to my decision making and how it
may have affected the continued viability of those particular
parts of the State bar. But I did still make those decisions
notwithstanding the comments that were made.
Senator Feingold. Thank you.
Let me turn to Mr. Greenfeld now. According to a BJS
report, in the year 2000, the most recent year with complete
statistics, 14 States executed 85 prisoners, and at the end of
that year, there were almost 3,600 people on death row. The
year before that, in 1999, more people were executed in the
United States than in any year since 1951. In the past decade,
between 1990 and 2000, the number of people on death row
increased by over 50 percent.
Now, I mention these facts because over this same period of
increased imposition of the death penalty, the accuracy of our
criminal justice system has been called into question by the
exoneration of over 100 individuals on death row. By
exoneration, I mean that their convictions were reversed and
they were acquitted after another trial or the charges were
dropped because, for instance, DNA evidence supported their
claim of innocence.
Just yesterday I chaired a hearing to examine the findings
of the Illinois Governor's Commission on Capital Punishment. I
recognize that BJS does not take any position on the
constitutionality of the death penalty in the studies it
conducts, but does BJS have any plans to study the phenomenon
of the exoneration of innocent people wrongly condemned to
death? Why or why not?
Mr. Greenfeld. Our current series on capital punishment,
which really dates back to 1930, examines the populations under
sentence of death from a point of being sentenced entering
prison until they are either executed, released, or die there.
So we do not have data that examines the front end, the
decisions that may be made prior to that part of the sentence
being imposed.
There are probably a number of studies which could be done,
and I believe NIJ is doing a study, I think at your request
specifically, to look at that issue. So I think they are--that
is being done at NIJ, and BJS has no plans at the moment,
though there are things that probably could be investigated and
developed into a national statistical series.
Senator Feingold. I am pleased you refer to that. I think
that study has to do with the issues of racial and geographic
disparities. What I am getting at here is the innocence issue
of 101 cases. So I hope you will consider that in your future
work.
One of the criticisms made of OJP and other Federal grant
agencies in recent years is that there have been very tight or
even symbiotic relationships developed in some pockets of some
agencies between long-time career staff and long-time
institutional grantees. In light of the need for arm's-length
relationships and the oversight of Federal moneys, what steps
will you take or have you taken as Acting Director of BJS to
address this problem or this perception?
Mr. Greenfeld. Well, the principal grant activity at BJS is
the National Criminal History Records Improvement Program,
which grew out of the Brady Act and the National Child
Protection Act. This particular grant activity provides funds
to States to build the infrastructure to support the national
instant check system as well as other background check systems,
and over the years BJS has folded in the development of the
National Sex Offender Registry and the National Protection
Order Files, other components of the records development
process.
I assign our grant monitors geographically so they maintain
liaison with the States, normally over a long period of time,
and it is important to build the rapport between the grant
managers at BJS and the States to clearly identify the problems
inherent in each State worthy of funding; and, secondly, for
them to participate in our data collection activities to
quantify the magnitude of those problems, so that we can tell
you in each State, for example, how many of the records are
automated, how many of the records are sharable under the FBI's
Interstate Identification Index, how many records they submit
to the Sex Offender Registry. So it's important to have that
close relationship between BJS and the States.
On the other hand, my job is to enforce all of the special
conditions that we impose on those grantees with respect to how
they spend the money, what personnel are on board, whether what
they do is complementary to the national system that we are
trying to build and so forth.
So through the rigorous special conditions, I can enforce
things that I know through your question you sound worried
about. But we can enforce those, and then through--when a State
needs a change, I can issue a grant adjustment which permits
that change. And it has to be signed by me. So I have
ultimately the enforcement authority. When States don't expend
their funds, I can tell them to spend the funds on something
else.
For example, after September 11th, I immediately asked them
to identify where they do not have backup repositories for the
criminal history records. And I wanted them, where they did not
have such backup facilities, to spend the money on that, the
unexpended Federal funds. So I can redirect them fairly
quickly.
Senator Feingold. All right. Thank you.
Mr. Greenfeld, in 1999, you worked on a report called
``Contacts Between Police and the Public,'' which was an annual
report to Congress required by the landmark Violent Crime
Control and Law Enforcement Act of 1994. This was the largest
survey ever conducted among U.S. residents about contacts
between police and the public and the outcome of those
contacts. According to that survey, in 1999 one in every five
Americans, 20 percent of those over 16, or 43 million people,
had contact with police mainly through traffic stops 51 percent
of the time. According to the survey, 10 percent of white
drivers were stopped and 12 percent of black drivers surveyed
were stopped, but only 75 percent African-Americans indicated
that there was a legitimate basis for the stop while 90 percent
of the white drivers felt the police officer had a legitimate
reason to pull them over. African-Americans were almost twice
as likely to have their vehicles searched than whites. Also,
African-Americans were twice as likely to experience police
threats or use of force during the traffic stop.
However, 75 percent of all of the nearly half a million
people (422,000) involved in a police force incident considered
the force used by police officers to be excessive and believe
that the police acted improperly.
This was an interesting study. Do you know what effect, if
any, this study has had on police policy? I am sure this was a
huge task. How often do you think such a survey would be
undertaken? What would you do differently in any future study
on this topic?
Mr. Greenfeld. We plan to replicate the study every 2 years
through--we utilize the National Crime Victimization Survey as
a platform because it is a nationally representative sample of
the U.S. population. And we then survey appropriate groups, in
this case those age 16 and older, with this supplement to that
crime survey.
So our plan is to repeat that every 2 years. This has been
widely shared with International Association of Chiefs of
Police, National Sheriffs Association. We spent a good deal of
time with the Police Corps folks to try to introduce it into
the training curricula. And we believe that it's--since it was
the first study of this magnitude, we believe that by repeating
it over time, we'll get a better sense of whether this is the
kind of experience people do have.
But, again, I think you pointed out most of the key
findings from it, and this is just a very important activity to
keep going.
We also plan to complement it with some administrative data
on use of force in particular, and that will come in the coming
years through our budget process.
Senator Feingold. Thank you for that answer.
Senator McConnell, anything further?
Senator McConnell. Nothing further, Mr. Chairman.
Senator Feingold. Thank you for your patience and
participation. I want to thank all of you for your
participation and join with Senator McConnell in congratulating
you. I certainly think matters will in all likelihood move
forward pretty well here. So I am pleased that we have gone
through this part of the process.
The record will remain open for one week to allow Senators
to submit written questions. That is the conclusion of the
hearing.
[The biographical information of Judge Cercone, Judge
Marra, Judge England, and Mr. Greenfeld follow.]
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[Whereupon, at 4:00 p.m., the committee was adjourned.]
[Questions an answers and submissions for the record
follow.]
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NOMINATION OF DENNIS SHEDD, NOMINEE TO BE CIRCUIT JUDGE FOR THE FOURTH
CIRCUIT; ARTHUR SCHWAB, NOMINEE TO BE DISTRICT JUDGE FOR THE WESTERN
DISTRICT OF PENNSYLVANIA; AND TERRENCE MCVERRY, NOMINEE TO BE DISTRICT
JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA
----------
THURSDAY, JUNE 27, 2002
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 2:04 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Herb Kohl
presiding.
Present: Senators Kohl, Leahy, Schumer, Edwards, Hatch,
Thurmond, Specter, and Sessions.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Senator Specter. Good afternoon, ladies and gentlemen. The
Committee on the Judiciary will now proceed. Senator Kohl, who
is scheduled to chair this hearing, will be a little late, so I
have been asked to move forward.
We have the distinction today of having Senator Thurmond,
along with Senator Hollings, introduce the nominee for the
Court of Appeals for the Fourth Circuit. When I joined the
Judiciary Committee on January 3, 1981, Senator Thurmond sat in
this chair and was an inspirational leader. I will tell only
one short story.
When he presided at a hearing not long after I became a
member, he asked a nominee if the nominee promised to be
courteous if confirmed, and the nominee said yes. And I thought
to myself, what would any nominee say to that question? I have
since learned that that is the most important question I have
heard asked in the Judiciary Committee.
Senator Kohl has arrived, but I will continue the
introduction of America's greatest, most distinguished, long-
serving Senator who will celebrate his 100 birthday on December
5 of this year, in advance of completing his term on January 3
of next year. I, for one, am still anxious to know if Senator
Thurmond is going to run for reelection.
Senator Thurmond?
PRESENTATION OF DENNIS SHEDD, NOMINEE TO BE CIRCUIT JUDGE FOR
THE FOURTH CIRCUIT BY HON. STROM THURMOND, A U.S. SENATOR FROM
THE STATE OF SOUTH CAROLINA
Senator Thurmond. Mr. Chairman, I am pleased to welcome
Judge Dennis Shedd here today. He is a fine judge who will be
an excellent addition to the Fourth Circuit Court of Appeals.
Judge Shedd will follow the law and protect the rights of all
people under the Constitution. I am proud to recommend him and
I urge you to move his nomination quickly.
I ask that my full statement be placed in the record.
[The prepared statement of Senator Thurmond appears as a
submission for the record.]
Senator Kohl [presiding.] Senator Hollings?
PRESENTATION OF DENNIS SHEDD, NOMINEE TO BE CIRCUIT JUDGE FOR
THE FOURTH CIRCUIT BY HON. FRITZ HOLLINGS, A U.S. SENATOR FROM
THE STATE OF SOUTH CAROLINA
Senator Hollings. Thank you, Senator Kohl, Senator Specter.
Let me ask unanimous consent that my full statement be included
in the record.
Senator Thurmond and distinguished members of the
Committee, it is a privilege to recommend for elevation from
the district to the Circuit Court of Appeals in Richmond Judge
Dennis Shedd. He is familiar to most of the members of the
Committee, having staffed this Committee for several years, and
then working, of course, with Senator Thurmond himself.
Since I have filed my full statement, let me acknowledge
the fact that I have received communications both from the
NAACP, the conference in South Carolina, and from one women's
group nationally. I have looked into those situations and I
find them wanting with respect to any real opposition to the
distinguished Judge Shedd.
His record over 11\1/2\ years will prove that he has had
almost 6,000 civil and criminal cases before his court and was
reversed less than two dozen times in the entire 11\1/2\
years--an outstanding record of sound judgment.
When I got these epistles from the NAACP and the ladies
group, I immediately started checking. We in the law know that
you never have a character witness come up and tell what he
knows of his own association, but rather in the trial of a case
you bring witnesses who give hearsay testimony, namely his
reputation in the particular community.
In that regard, having checked it out, Judge Shedd is my
kind of judge. He is hard, he is tough, but he is hard and he
is tough on both sides. We who practice law before the courts
appreciate that because we know what the score is, and we are
not playing any games and the judge is not going to allow any
games to be played on you. I have said so often that more than
a balanced budget, we need some balanced Senators. I present to
you my friend, Judge Dennis Shedd, a balanced judge.
I will be glad to try to respond to any questions.
Senator Thurmond. I might state that with Dennis will be
his wife, Elaine, and children Sarah and Michael.
Senator Hollings. Yes. Do you want to stand up here and be
recognized, Sarah and Michael?
[Sarah and Michael Shedd stood.]
Senator Hollings. Thank you.
Thank you very, very much.
Senator Kohl. Thank you, Senator Hollings.
Senator Hollings. Thank you very much, Senator Kohl. I
appreciate it.
[The prepared statement of Senator Hollings appears as a
submission for the record.]
STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM THE STATE
OF WISCONSIN
Senator Kohl. Senator Thurmond, we thank you for gracing us
with your attendance today. We appreciate it very much. We
appreciate your statement.
We welcome the distinguished members of the Senate who have
been and will be here today to introduce particular nominees.
Of course, we welcome the nominees, as well as your families.
Judicial nomination hearings are among the most important
duties of the Judiciary Committee. A Federal judgeship is a
lifetime appointment and a job that affects the lives of many,
many people throughout the course of the judge's tenure. The
job is a great responsibility entrusted to very few people, and
all we ask, of course, is that you administer impartial justice
and obey the Constitution. So we congratulate all of the
nominees on their selection.
We would like to proceed in the following manner. After
opening statements, if there are any, from Committee members,
we would like for the Senators to present and introduce their
nominees. Then we will invite all of the nominees forward
together to appear before this Committee.
These nominees will include Judge Dennis Shedd, to be
United States Circuit Judge for the Fourth Circuit; Terrence v.
McVerry, to be United States District Judge for the Western
District of Pennsylvania; and Arthur Schwab, to be United
States District Judge for the Western District of Pennsylvania.
I would like to recognize members of the Senate who are
here today to introduce any of the nominees.
Senator Specter?
PRESENTATION OF ARTHUR SCHWAB AND TERRENCE MCVERRY, NOMINEES TO
BE DISTRICT JUDGES FOR THE WESTERN DISTRICT OF PENNSYLVANIA BY
HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF
PENNSYLVANIA
Senator Specter. Thank you very much, Mr. Chairman.
Senator Santorum and I have the pleasure to introduce two
very distinguished lawyers who have been nominated by the
President to be district judges for the Western District of
Pennsylvania. These two men have been recommended by the
bipartisan nominating commission which Senator Santorum and I
have established, and I will be brief in the introductions,
although a great deal could be said about these two men.
Arthur J. Schwab is a graduate of Grove City College in
1968, cum laude, and the University of Virginia Law School in
1972, Order of the Coif. Mr. Schwab has had an extraordinarily
distinguished career in the practice of law, having tried cases
in more than 22 states in State and Federal courts.
He is chief counsel of the complex litigation department at
the Buchanan Ingersoll firm in Pittsburgh, a larger, very
distinguished firm, and his practice has been really
extraordinary in the areas of trade secrets, confidential
information, employment agreements, software copyright
infringement, trademark, unfair competition, and various
corporate matters.
I have known Arthur Schwab for more than 15 years and I
have had many legal discussions with him and can personally
attest to his great depth as an attorney.
Judge Terrence McVerry is another outstanding nominee, a
graduate of Duquesne University in 1962, also the law school in
1968. He has judicial experience, having served on the Court of
Common Pleas from 1998 to the year 2000. He serves as solicitor
to the Allegheny County, Pennsylvania, governmental unit, and
was rated unanimously ``well qualified'' by the American Bar
Association; very extensive public service, a member of the
United States Reserves in the Pennsylvania Air National Guard.
He began his career in the Allegheny County district attorney's
office.
I am confident that both Mr. Schwab and Judge McVerry will
be outstanding additions to the Western District bench.
Thank you, Mr. Chairman.
The Chairman. We thank you, Senator Specter.
Senator Santorum?
PRESENTATION OF ARTHUR SCHWAB AND TERRENCE MCVERRY, NOMINEES TO
BE DISTRICT JUDGES FOR THE WESTERN DISTRICT OF PENNSYLVANIA BY
HON. RICK SANTORUM, A U.S. SENATOR FROM THE STATE OF
PENNSYLVANIA
Senator Santorum. Thank you, Mr. Chairman, and it is a
great pleasure and honor for me to join my colleague, Senator
Specter, in presenting to the Committee these two fine
gentlemen. As Senator Specter said, I think they will make
outstanding additions to the Western District bench.
Let me start in the same order that Senator Specter did
with Art Schwab. Senator Specter, I think, commented about his
incredible litigation experience, his work at a large, major
law firm in Pittsburgh, and the outstanding work that he has
done within the firm, but also with the Pennsylvania Bar
Association. He is very active in the Pennsylvania Bar
Association, very active also in teaching and education.
He has been active in the community on a variety of
different fronts. He has been one of Pittsburgh's leading
citizens in the philanthropic work that he has done, as well as
the work that he has done, I know, on the board of a university
in Western Pennsylvania.
He is a true scholar, someone who has great knowledge of
the law and has incredible depth of practice experience, and
will bring a vibrancy to the court that is obviously important
to the health of our judiciary.
He has an incredible family. I know his son, John, is here,
who was an intern for me years ago and who is now a Marine
lieutenant. He has a terrific family that is a great part of
the fabric of Western Pennsylvania, and I am very, very excited
to be here to recommend him to the Committee.
Terry McVerry is someone whom I have known for better than
15 years. At one time, he was a neighbor and lived a couple of
streets away from me. When I first moved into the Pittsburgh
area he was my State Representative, and I got to know him as a
State Representative, as someone who was a very conscientious
legislator and public servant. He served with great distinction
and had enormous bipartisan support in the time that he served
as a legislator, and frankly, in a very competitive district,
never had particularly serious contests because of Terry's
incredible self-effacing demeanor and wonderful temperament and
ability to work with people in a very constructive way.
In fact, I can think back to the time when Terry decided
not to run again. One of the reasons he decided he didn't want
to run again is he felt that the legislative arena was just a
little too combative for him, that it was too partisan for him.
So he decided to leave and go back to the practice of law,
which he had been engaged in as an assistant district attorney
before he ran for office, and practiced law until he decided to
run--well, actually was appointed to a judgeship in Allegheny
County, and served with great distinction on the bench for 3
years.
He then went on to become the solicitor and head of the law
department for Allegheny County, which is the county which
Pittsburgh is in. It is over a million people. He continues to
serve, again, with great distinction in public service.
He, too, married well above himself. His wife is a very
dear friend and someone who has been very close to Karen and
our family. They are a terrific family, terrific people, and I
think will be a tremendous asset to the Western District of
Pennsylvania.
Thank you, Mr. Chairman.
Senator Kohl. Thank you, Senator Santorum.
Senator Sessions, do you want to make a comment before we
start our proceedings?
Senator Sessions. I just would note that this is a good
group of nominees. It is great to see Senator Santorum here. I
respect his opinion and that of Senator Specter so very much on
these nominees in their State. And I know Senator Thurmond is
strongly supportive of Judge Shedd.
Senator Kohl. Thank you.
At this time, we would like to ask that the nominees step
forward and raise your right hands.
Do you swear the testimony you shall give in this hearing
will be the truth, the whole truth and nothing but the truth,
so help you God?
Judge Shedd. I do.
Mr. McVerry. I do.
Mr. Schwab. I do.
Senator Kohl. Thank you. Be seated, gentlemen.
If any of the nominees would like to make a statement or
introduce their families before we start, you are welcome to do
that.
We will start with you, Mr. Shedd.
STATEMENT OF DENNIS SHEDD, OF SOUTH CAROLINA, NOMINEE TO BE
CIRCUIT JUDGE FOR THE FOURTH CIRCUIT
Judge Shedd. Thank you, Mr. Chairman. I don't have a
statement to make. I would like to thank Senator Thurmond and
Senator Hollings for their kind introductions, and I would like
to introduce my family. Again, my wife, Elaine Wiggins Shedd,
kind of a homecoming for her because she served here as a
Senate staffer for both Senator Henry ``Scoop'' Jackson and
Jeremiah Denton, from Alabama. Our children: Sarah, our
daughter. She is 11 next month. And Michael. He just turned 9.
We also have some other friends with us: Tom Jones, who is
practicing law in Baltimore, a former clerk of mine. Jim
Bayless, a former staffer here, who is a family friend as well.
I think Mark Goodin is here, who used to be the spokesperson
for this Committee staff, and also I think Judge Bob Hodges
from the Court of Claims is here as well.
Thank you very much, Mr. Chairman.
Senator Kohl. We thank you, Judge Shedd.
Mr. Schwab?
STATEMENT OF ARTHUR SCHWAB, OF PENNSYLVANIA, NOMINEE TO BE
DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Mr. Schwab. Good afternoon. Thank you, Mr. Chairman. I
don't have a statement, but I appreciate the kind remarks of
Senator Specter and Senator Santorum.
I would like to introduce my family. My wife, Karen, my
wife of a wonderful 30-plus years, and my daughter, Ellen, and
her new husband, Bryan, and my oldest son, John, and my son,
David.
I have a friend from law school, Rob Rhodes, and Rob and I
went through law school for 3 years at UVA together, and law
review, and we have been good friends over the last 30 years.
So I am really thankful that he could be here.
Also, I have two friends from Philadelphia, Margarite and
her daughter Emily Walsh. Emily, if I may say, just finished
8th grade and was the Cinderella in her class play, so I am
really delighted that she could be here. We e-mail back and
forth, so I am glad that her schedule permitted that both of
them could visit us from Philadelphia.
Thank you.
Senator Kohl. Thank you very much. We welcome all your
family and friends.
Mr. McVerry?
STATEMENT OF TERRENCE F. MCVERRY, OF PENNSYLVANIA, NOMINEE TO
BE DISTRICT JUDGE FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Mr. McVerry. Thank you, Mr. Chairman. I appreciate the
opportunity to be here today. I would like to extend my sincere
gratitude to Senator Specter and Senator Santorum for the kind
words of introduction and support throughout the nomination
process.
I would also like to introduce my wife of 36 years, Judy,
and our oldest daughter, Erin Crowley. Unfortunately, her
husband is detained in Bloomington, Indiana, on a new job. And
our first grandson, 14-month-old Aidan, couldn't be here today.
He had a prior engagement.
My daughter, Bridget, is with me today, and my son, Bryan.
And my daughter-in-law, Cindy, has arrived, who just trained in
from New York City.
So I am so happy to have my family here with me today and I
appreciate the opportunity to answer any questions you may
have.
Senator Kohl. Thank you, and we welcome members of your
family and friends.
We will start with questions for you, Judge Shedd.
Judge Shedd, you are aware that the Fourth Circuit is
considered the most conservative court in the Nation,
especially on civil rights and constitutional issues. For
example, the court found that police need not follow Miranda
warnings, only to be reversed by the Supreme Court. The court
authorized drug testing for pregnant women without their
consent, only to be reversed by the Supreme Court. The circuit
upheld your decision finding the Driver Privacy Protection Act
unconstitutional, only to be reversed unanimously by the
Supreme Court. These are just a few of the cases that we could
offer as examples.
Can you tell us whether you believe that the Fourth Circuit
is out of the mainstream today, and if so, how you would go
about being a moderating force on the court?
Judge Shedd. Thank you, Mr. Chairman. May I also add that I
overlooked another former clerk, Garry Malphrus, who was a
staffer here who has joined us as well. I wanted to add that.
Let me, in answer to that question, say to you I am always
a little concerned about characterizing other judges and what
they do. But I do think that the Fourth Circuit has a wealth of
different ideas through judges on there that I think people
would consider more liberal, more moderate.
And I think, quite frankly, the experience that I have as a
trial judge--I think I would bring more Federal trial
experience to the court than anyone there. And my background,
which is kind of really, as best as I can tell, more similar as
growing up and background to Judge Gregory--I think that will
bring some balance to that court.
Senator Kohl. Judge Shedd, almost 5 years ago you held the
Driver's Privacy Protection Act unconstitutional in the Condon
v. Reno case. You said that Congress overstepped its bounds in
forcing the States to implement Federal policy. Your decision
was reversed by a unanimous Supreme Court ruling written by
Chief Justice Rehnquist.
Beginning with the Lopez decision, the Supreme Court has
struck down a number of Federal statutes, including several
designed to protect the civil rights of our more vulnerable
citizens, as beyond Congress' power. Taken individually, these
cases have raised concerns about the limitations imposed on
congressional authority. Taken collectively, they appear to
reflect a new federalism crafted by the Supreme Court that
threatens to fundamentally alter the structure of our
Government.
If you were back in your role as Chief Counsel of the
Judiciary Committee, how would you advise us to draft laws that
would satisfy constitutional analysis? How much deference do
you believe courts should give when Congress finds an issue is
of national importance?
Judge Shedd. Thank you very much. That is a very good
question. Let me say, Mr. Chairman, first as to the DPPA case
which I did have--and then you mentioned Lopez, which was the
guns out of schools act--I had a challenge to that very same
Act, which I upheld the constitutionality of the congressional
enactment earlier than Lopez. The Supreme Court went the other
way from me on that Act, as well, but I said it was
constitutional.
I think what I would advise you if you were to ask me to
and I could do that--I would just say that Congress has to be
clear in what they are attempting to do, and Congress is going
to have to do what we judges will have to do, is to look very
closely at the test the Supreme Court applies.
You would look to that test to try to fashion legislation
to meet the objectives that you want to meet, and then we would
have to look at that test to see if you have done that
properly.
Let me say I believe part of my jurisprudence is first you
presume acts of Congress to be constitutional. And, second,
under the approach in TVA v. Ashwander, is the doctrine of
constitutional avoidance. If a judge can figure a way not to
confront the constitutionality of a statute and risk declaring
it unconstitutional, that is what a judge should do.
Senator Kohl. Thank you.
Judge Shedd, in September 2000 you ruled on an immigration
case involving a suspected terrorist who was on a hunger
strike. The strike had lasted for 6 weeks and the INS wanted to
force-feed that person. You held that the detainee had a
constitutional right to inaction, even if it could lead to his
death, and that the refusal to eat was the last and ultimate
form of protest against the U.S. Government. Many judges have
disagreed and ordered forced feeding.
So is it fair to assume that you believe the Constitution
recognizes a right to die? We don't have your decision in this
case, so can you tell us whether the right to privacy played a
role in the decision and more generally what you understand a
constitutional right to privacy to be?
Judge Shedd. It is a several-part question, Mr. Chairman. I
will say first my decision in the protest case--I didn't so
much focus on the right to die, but I focused on the right to
protest Government action. I thought of that as a very valid,
maybe one of the prime civil rights an individual has.
And if he wanted to protest treatment by the Government to
the point that he expired, I thought that he had the right to
do that. I thought that is the last, final form of protest, and
I looked at that as an individual right issue, that a citizen
could do that if a citizen wanted to do that.
On the right to privacy, I would say that I didn't really
consider that to be a right to privacy. I thought that was more
a right to protest governmental action. But if I understood
your question correctly, I do see a right to privacy in other
contexts in the Constitution.
Senator Kohl. One more question. In 1994, you considered a
lawsuit brought by several South Carolinians who asserted that
flying the Confederate flag over the State house was
unconstitutional. In that case, you suggested that the American
flag, or even the palmetto tree, could be just as objectionable
as the Confederate flag.
In addition, at the end of the proceedings you expressed
your frustration with the time being spent on discussing the
flag when there were other, quote, ``real problems which
merited more attention.''
Judge Shedd, we don't need to tell you that the Confederate
flag and the ideas that it represents offend a great number of
people who live in the area covered by the Fourth Circuit. They
believe the presence of the Confederate flag over the State
house is a real problem, and these people turn to you and the
system of justice in which you serve for a fair hearing of
their complaints.
It sounds like you were minimizing the importance of the
issue at the time. Looking back at the comments you made at
that time, would you change some of those comments if you could
today?
Judge Shedd. Let me say this, Mr. Chairman. Thank you for
that question. I think quite frankly, taken in context, that I
did not make light of their constitutional claim. I said
specifically to them I do not denigrate your constitutional
claim. There are people of goodwill on both sides of this
issue, and also I think the record will reflect I didn't say
that the American flag was objectionable. I didn't say that the
palmetto flag was. I was just probing them on their
constitutional theory.
And one of the lawyers told me that the flag had to come
down under his constitutional theory because it was
controversial, and I just pointed out by way of sort of
Socratic exchange with lawyers and a judge--that is sort of my
style--I pointed out there had to be some other standard I
would have to apply because a lot of things are controversial.
I said during the Vietnam era, some thought the American
flag to be controversial, and the reason I said that is I can
remember from college days burning--I didn't do it, but people
burning the American flag in protest. Then the lawyer also said
as part of his constitutional argument that, well, people would
not come to South Carolina and associate with him because they
were concerned about that flag.
And I just made the point I didn't think that was a strong
enough theory either because people might object to--our State
flag has a tree on it and that tree represents the fact it was
cut down to make a fort during the Revolutionary War which
helped defeat the British. I was just making the point that I
didn't think that was quite a strong enough argument to him. I
didn't rule against him. I was just having an exchange with him
about what his theory was.
And then at the end or that part of the discussion, I said
very clearly there are people of goodwill on both sides of this
issue, that I did not denigrate that constitutional claim at
all. I didn't even dismiss it. I just retained jurisdiction
over it. I thought there was a parallel case in State court. I
said I have great confidence in the courts and the elected
officials in South Carolina to solve that problem. I would say
now I think that prediction was right. It was solved in a
political manner.
And then quite frankly as to those other comments, Mr.
Chairman, if I could put those in context, I looked up at that
hearing and in front of me in that court hearing I had really
all the powers that be in South Carolina. I had the Budget and
Control Board. They run the State of South Carolina. I had
representatives from the Governor, the attorney general.
And I had had in the previous month, month-and-a-half,
three enormously egregious circumstances affecting, quite
frankly, African American citizens in the State. And it wasn't
planned or anything, but after I said I don't denigrate your
claim on the flag and we will get back to that and let me talk
about these other real-life problems that I wish somebody would
address--and I took that opportunity to comment on them
because, quite frankly, Mr. Chairman, I thought the
circumstances that those African Americans who had appeared in
front of me in other cases had explained to me--I thought they
were so outrageous and egregious that I was just trying to say
take a look at those and we need to do something about those as
well.
Senator Kohl. We thank you very much.
Judge Shedd. Thank you.
Senator Kohl. As we move forward at this time, I would like
to ask first Senator Hatch if he wishes to make a statement,
and then we will turn to the members of the House who are here
who wish to make a statement.
Senator Hatch?
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Well, thank you for your courtesy, Senator
Kohl. I appreciate it, Mr. Chairman. I would like to make a
statement because there are, I think, some matters that need to
be somewhat cleared up, some accusations, that I would like to
spend a little bit of time on. So it will be a little longer
than usual and I hope my colleagues will bear with me.
This is important stuff. We are talking about Federal
judges here. Of course, I am aware of our two colleagues from
Pennsylvania, having practiced law in the Western District of
Pennsylvania myself. We welcome you all to the Committee.
I would like to ask that I be able to put statements for
Mr. Schwab and Judge McVerry into the record, if I can, Mr.
Chairman, if I could put those statements in the record with
regard to those judges.
Senator Kohl. It will be done.
[The statements of Senator Hatch appear as submissions for
the record.]
Senator Hatch. I look forward to voting for all these
nominees in Committee and on the Senate floor. Now, I am going
to have to spend some time welcoming Judge Dennis Shedd, for
whom this moment must surely be both a life's milestone and a
sentimental homecoming.
I also know this is a proud moment for our dear friend,
Senator Thurmond, for whom Judge Shedd served in various
positions, including as chief counsel to this Committee.
Senators feel very strongly about their staffs, and our legal
counsels make uncounted sacrifices to work for us and for the
American people.
We are surrounded by very talented lawyers who forego
larger salaries for the sake of public service. Sometimes, they
put their personal opinions aside to advocate ours. We Senators
take very personally when they are nominated and given the
opportunity for yet higher public service. We take personally
our friendship with them.
It has been the tradition of this Committee to give great
courtesy to former staffers. I certainly take it very
personally, and I know that Senator Thurmond does too. But we
two former chairmen are not alone in our good impressions of
Dennis Shedd.
When Judge Shedd was nominated to the Federal trial bench,
Chairman Biden had this to say to him, quote, ``I have worked
with you for so long that I believe I am fully qualified to
make an independent judgment about your working habits, your
integrity, your honesty, and your temperament. On all these
scores, I have found you to be beyond reproach,'' unquote. I
have to echo that.
This is high praise indeed, and from a colleague from the
other side of the aisle for whom we all have the greatest
respect and who is a former chairman of this Committee as well.
Judge Shedd has strong bipartisan support in his home State
as well, and not only from Senators Thurmond and Hollings, who
know him the best. He is also strongly supported by Dick
Harpootlian, South Carolina State Chairman of the Democratic
Party, and himself a trial lawyer.
Dennis Shedd has served as a Federal jurist for more than a
decade, following nearly 20 years of public service and legal
practice. While serving this Committee, Judge Shedd worked,
among many other matters, on the extension of the Voting Rights
Act, RICO reform, the Ethics in Post-Employment Act, and the
1984 and 1986 crime bills. As Senator Biden put it, ``His hard
work and intelligence helped the Congress find areas of
agreement and reach compromises,'' unquote. It is no wonder to
me that during his service on the district court he has sat by
designation on the Fourth Circuit Court of Appeals on several
occasions.
That leads me to address a few issues that have been raised
in the press and on the websites of the usual suspects in the
last few days. First, let me address the more ludicrous attempt
to discredit Judge Shedd that was brought to my attention that
when he was confirmed to the district court bench, he had
little experience in the practice of law.
To ignore the remarkable experience Dennis Shedd had in
legislative practice crafting historic laws while serving this
Committee is some chutzpah, is all I can say.
Senator Schumer. What was that word?
Senator Hatch. Whatever it is, I know that you understand
it. And you not only understand it, you have plenty of it
yourself.
[Laughter.]
Senator Schumer. Touche.
Senator Hatch. I have been told I have some myself. I have
a limited amount myself, I am sure.
Senator Schumer. It is a compliment where I come from.
Senator Hatch. It is for me.
To raise an objection like that 12 years after the fact is
just plain silly.
But let's be clear. When Judge Shedd joins the other
members of the Fourth Circuit, he will not only have unmatched
legislative experience, he will also have the longest trial
bench experience on the Fourth Circuit. He will also add some
diversity to that court. The last five circuit nominations have
all been Democrats.
Interestingly, the last Democrat confirmed, Judge Gregory,
has affirmed Judge Shedd's rulings in 11 appeals. Notably,
Judge Gregory also agreed with Judge Shedd's ruling in the
Crosby case, which found that the Family and Medical Leave Act
was improperly adopted by Congress, a case which the liberal
groups seem worked up about. I find it curious that no one
asked Judge Gregory about his ruling in Crosby when he was
before this Committee.
Judge Shedd has heard more than 5,087 civil cases, reviewed
more than 1,406 reports and recommendations of magistrates, and
has had before him more than 929 criminal defendants.
Judge Shedd's record demonstrates that he is a mainstream
judge with a low reversal rate. In the more than 5,000 cases
Judge Shedd has handled during his 12 years on the bench, he
has been reversed fewer than 40 times. That is remarkable, less
than 1 percent.
Detractors have made much of the fact that he has a
relatively few decisions that he has chosen to publish. But, in
fact, he falls in the middle of the average for unpublished
opinions in the Fourth Circuit. One Carter appointee has
published all of seven cases. One Clinton appointee has
published only 3, and another Carter appointee has published
just 51, only one more than Judge Shedd, despite being on the
court 10 years longer.
Mr. Chairman, Judge Shedd is known for his fairness, total
preparation, and for showing no personal bias in his courtroom.
This is not just my opinion; this reflects the opinions of
lawyers who practice before him. Judge Shedd is well respected
by the members of the bench and bar in South Carolina.
According to the Almanac of the Federal Judiciary,
attorneys said that Judge Shedd has outstanding legal skills
and an excellent judicial temperament.
Here are a few comments from South Carolina lawyers: ``You
are not going to find a better judge on the bench or one that
works harder.'' ``He is the best Federal judge we've got.''
``He gets an A all around.'' ``It's a great experience trying
cases before him.'' ``He's polite and business-like.''
Washington's professional nominee detractors, of course,
have been particularly misleading on Judge Shedd's record on
employment cases, and I take particular offense at that. They
have misleadingly pointed out that the judge seldom grants
summary judgment in employment cases in favor of the employee.
Of course, few judges do. Such cases are inherently fact-laden
and go to trial or settle, or the plaintiff too often fails to
state a claim.
They could have noticed that he has only twice been
reversed in employment cases in all of this work he has done,
but they didn't. They might have pointed out that in one of the
appeals that he was invited to hear for the Fourth Circuit, he
reversed a summary judgment and remanded for trial a political
discrimination case against a worker who was a Democrat. But,
of course, they didn't notice this.
Detractors have also tried to make irresponsible claims as
to the judge's criminal case record. In criminal cases, Judge
Shedd has strongly defended citizens' due process rights from
violation by the state. He has frequently chastised law
enforcement for errors in search warrants and the questionable
use of seized property. In fact, he has sanctioned the State
for discovery problems. He is known for aggressively informing
defendants and witnesses of their Fifth Amendment rights.
Remarkably, Judge Shedd has never been reversed on any ruling
considered before or during trial, or on the taking of guilty
pleas.
The cases that come before a judge are often difficult. He
has not been exempted; he has had plenty of tough cases. In one
case, Judge Shedd allowed a detainee to engage in a hunger
strike as a protest against government's attempt to force-feed
him.
Though some would seek to question Judge Shedd's respect
for privacy, in two cases he protected HIV blood donors'
confidentiality. In another case, he ordered special
accommodations to an HIV-positive defendant to ensure his
continued clinical treatment. As one of the coauthors of the
three AIDS bills, I personally appreciate that.
Of course, a smear campaign against a nominee is not
complete without the suggestion that they are a foe of
environmental rights. Judge Shedd's detractors have ignored the
wetlands protection case, where he handed down tough sanctions
against a violator and ordered wetlands restoration.
They also skipped over his decision in favor of National
Campaign to Save the Environment, and they missed his ruling to
grant standing to a plaintiff challenging a road construction
project on its environmental impact. They missed his ruling in
favor of a woman protesting possible waste-dumping in her
community.
But the most breathtaking charge against Judge Shedd was
the NAACP's earlier this week that he has, and I quote, ``a
deep and abiding hostility to civil rights,'' unquote. I have
to tell you I was outraged by this, and I am not the only one
who has been outraged by this on this Committee. It is a
distortion far beyond the pale of decency, and I hope that my
colleagues will be quick to repudiate such rabid practices. In
part, I am outraged because there are some who would profile
Judge Shedd as merely a white male from the South and start
from there to give him a certain treatment.
I should note that no less a figure than Ralph Neas noted
in the National Journal in 1987 that the Judiciary Committee
during Dennis Shedd's tenure had a good civil rights record.
Now, I am not one who often quotes Ralph Neas, although we have
been friends and still are. The fact of the matter is that
Ralph knows he is a good man.
If his record working for civil rights legislation on the
Judiciary Committee were not enough of an accomplishment for
one lifetime for any man or woman, the truth is that in each of
the cases that have come before Judge Shedd involving the
Voting Rights Act of 1965, plaintiffs have won their claim.
In the Dooley case, a one person/one vote case, Judge Shedd
gave the plaintiff a clear and strong decision. In another
political rights case, he ruled to protect plaintiff's right to
make door-to-door political solicitations.
You know a lot about a judge by how they conduct their
courtroom. As you know, Mr. Chairman, I have been a strong
advocate for the protection of religious practices in the
public square. It says a lot about Judge Shedd, especially in
these times, that he allowed religious headdress in his
courtroom.
Judge Shedd also led efforts to appoint the first African
American woman ever to serve as a magistrate judge in South
Carolina and has sought the selection Committee to conduct
outreach to women and people of color in filling such
positions. He pushed for an African American woman to be Chief
of Pre-Trial Services. He has actively recruited people of
color to be his law clerks.
Because of Judge Shedd's work in an award-winning drug
program that aims to reverse stereotypes among 4,000 to 5,000
school children, he was chosen as United Way School Volunteer
of the Year.
Mr. Chairman, I would like to place in the record a very
touching letter from one of Judge Shedd's former clerks, Thomas
Jones, who happens to be a person of color, an African
American, written in favor of Judge Shedd and sent just
yesterday to Senator Leahy.
He says, quote, ``It is apparent to me that the allegations
regarding Judge Shedd's alleged biases have been propagated by
individuals without the benefit of any real, meaningful
interaction with Judge Shedd. . .I trust the allegations are
given the short shrift they are due,'' unquote.
[The letter referred to appears as a submission for the
record.]
Senator Hatch. Last, I would like to address the most
repugnant attempt to smear Judge Shedd by taking his words
entirely out of their context with regard to the neuralgic
issue of the Confederate flag.
According to one group's website and an NAACP release,
Judge Shedd is accused of having made, quote, ``insensitive
comments as he dismissed a lawsuit aimed at removing the
Confederate flag from the South Carolina statehouse,'' unquote.
Nothing could be further from the truth. In fact, in the
Alley case--a complaint brought by white plaintiffs, not
African Americans--Judge Shedd never addressed the merits of
the Confederate flag issue. Instead, he stayed the Federal case
to permit a parallel State action to go forward. The statements
attributed to him were, in fact, questions to the counsel.
Judge Shedd explained that he was merely asking questions
to explore the lawyer's legal theory. He stated, quote, ``Let
me make it very clear to everybody. I'm not determining now
whether or not the flag should be there at all,'' unquote.
Mr. Chairman, I would like to place into the record a
portion of the transcript from the Alley case which places in
context what Judge Shedd thinks about the issue of the
Confederate flag in relation to other issues facing the African
American community. His is a view shared by many African
American leaders concerned with the issues facing their
community.
[The information referred to appears as a submission for
the record.]
Senator Hatch. Remarkably, although taking Judge Shedd to
task for a Confederate flag case in which he never reached the
merits of the issue, the liberal groups starkly ignore Judge
Shedd's ruling in the Vanderhoff case, in which he did reach
the merits of the issue concerning the Confederate flag.
In Vanderhoff, Judge Shedd dismissed the claim of a fired
employee who repeatedly displayed the Confederate flag on his
toolbox in violation of company policy. Judge Shedd rejected
the plaintiff's contention that he was dismissed because of his
national origin as a, quote, ``Confederate Southern American,''
unquote.
In sum, Judge Shedd's detractors have a habit of ignoring
the positive and accentuating the negative. For these
irresponsible liberal groups, fair is foul and foul is fair,
and the truth is what works for them.
I look forward to this hearing, and I want to thank
Chairman Leahy and Chairman Kohl for scheduling it and holding
it. It is important that we treat our former staffers with
dignity and decency and honor and honesty.
So I want to thank you, Chairman Kohl, for being the
chairman of this hearing and for being willing to get this
hearing done because Judge Shedd has been sitting there now for
well over a year and he deserves better treatment than this.
I just want to personally say I know this man. I worked
very closely with this man, as I have worked with his mentor,
Senator Thurmond, one of the all-time great Senators of this
body, a man who has stood up in so many ways for so many good
people throughout this country.
I know Judge Shedd very well. He is a man of integrity, he
is a man of personal perspicacity, and he is a person that I
have total confidence in. I have watched his record and I have
been very proud of him. If we had more Federal judges like
Judge Shedd, this country would be better off. We ought to be
looking for more like him who will do it the way it is, do it
the way it should be done, and who literally is honorable in
everything he does.
Thank you, Mr. Chairman. Sorry to take so long, but I felt
like I had to set some of this record straight.
Senator Kohl. Thank you, Senator Hatch.
At this time, we would like to ask for statements from two
members of the House who are with us here.
PRESENTATION OF DENNIS SHEDD, NOMINEE TO BE CIRCUIT JUDGE FOR
THE FOURTH CIRCUIT BY HON. JOE WILSON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF SOUTH CAROLINA
Representative Wilson. Mr. Chairman, I am Congressman Joe
Wilson from South Carolina and I am just very honored to be
here with you and the other members of the Senate who are
present. This is the first time I have ever been invited to
appear before a Senate Committee. It is a great honor for me,
but it is a particularly great honor to be here and speak as to
the integrity and standing of Judge Dennis Shedd in South
Carolina.
I have multiple perspectives that I can tell you about. The
first is that Judge Shedd used to be a law clerk in the office
that I worked in until I was elected to Congress, and so I know
firsthand as a student not too many years ago when the judge
was just a person that you could count on in our office and we
are very, very proud of his success.
Additionally, I have the perspective of having been a
former employee myself of Senator Strom Thurmond, and we have
an alumni association of persons who worked with Senator
Thurmond. It is called the Strom Thurmond University Alumni
Association, and the reason we call it that is because those of
us who have worked for the Senator are constantly being taught
and that is why we call it a university.
So I have had the wonderful experience of working with
Judge Shedd for getting the alumni together where we honor the
Senator and we tell Strom-isms, stories about Senator Thurmond,
and they are all true. So it is a wonderful experience that we
have of camaraderie of what we have learned from Senator
Thurmond.
Additionally, I can tell you that I was Judge Shedd's State
Senator for 17 years, and I know of his standing in the
community. I almost know it, Mr. Chairman, too well, in that I
was in his court one time as a member of the delegation as a
defendant.
We had passed a law, and it was in good faith, to provide
for a designated seat on a school board for a rural community.
Judge Shedd was very fair in hearing the evidence. He showed no
partiality to his former employer and he ruled against us that,
in fact, we had inappropriately designated a seat and it should
not have been done. So I know firsthand, again, of his
integrity and his knowledge and background.
And then, of course, as a member of the State Senate and
knowing him in the community, I appreciate his volunteer work
with the schools, with the sports programs of the community
that I represented.
And now I am very honored. I was elected December 18th and
sworn in on December 19th, and I am now U.S. Representative for
Judge Dennis Shedd and I am just very honored to be here on his
behalf. In so many ways, I can point out to you from so many
perspectives that this is a very fine person, a very
constructive person in our community, a person of the highest
integrity, and I urge his confirmation.
I would be happy to answer any questions.
Senator Kohl. Thank you very much.
We need to recess for just a few minutes, but before I do,
I will give you, Ms. Hart, 2 minutes to make a statement if you
would like.
PRESENTATION OF ARTHUR SCHWAB AND TERRENCE MCVERRY, NOMINEES TO
BE DISTRICT JUDGES FOR THE WESTERN DISTRICT OF PENNSYLVANIA BY
HON. MELISSA HART, A REPRESENTATIVE IN CONGRESS FROM THE STATE
OF PENNSYLVANIA
Representative Hart. Thank you, Mr. Chairman, and I will be
brief, as I know you have a lot of work before you today.
I have the honor of having two of my constituents, or one-
and-a-half of my constituents here today. First, I would like
to introduce Art Schwab, who is my constituent from suburban
Pittsburgh. Art is to my right. Good to see you today.
He has been a long-time colleague, as I have been an
attorney in Allegheny County, and I am pleased that the
Committee has decided to have a hearing for him. He has sought
this appointment for a long period of time, and as we know,
that would be a financial sacrifice for his family, but he has
been enthusiastic about public service.
He has acquired tremendous experience in the law and he has
been a long-time litigator, obviously very well prepared. He is
known in our bar association as a dedicated and intellectually
gifted attorney. His diverse experience includes trying cases
in Federal courts in 22 different states. His cases have
included wide-ranging areas of the law, including securities,
banking, employment, labor, and antitrust. He has offered his
legal expertise to others through a variety of seminars
throughout his career.
In addition to this distinguished service, he has also
dedicated an extremely large amount of time to his alma mater,
Grove City College, serving on their board of trustees. He has
worked to ensure that today's students gain the same high-
quality education from one of Western Pennsylvania's best
schools, as he did.
He has been devoted to his family. He is known as a
wonderful family man and has been quite involved in the lives
of his children. I am certain he would show that same
dedication to the district court. His skill and his balanced
judgment would serve both the court and the Nation well.
I also have the pleasure of knowing Terry McVerry quite
well. Terry also is an attorney practicing in Allegheny County,
and I am pleased that this Committee has decided to have a
hearing on his nomination, also to the District Court for the
Western District of Pennsylvania. Terry is especially suited
for the position as an accomplished attorney, also, and a
dedicated public servant, as well as a husband and father.
He worked as an attorney in Pittsburgh for 33 years. He is
a skilled litigator, trying a variety of cases. He served as a
trial prosecutor in the Allegheny County district attorney's
office, where he successfully prosecuted hundreds of cases.
He has gained varied experience, in civil litigation,
trying many cases, including medical malpractice, custody
cases, and business and real estate claims. He is currently
serving as the Allegheny County Solicitor, so he has been on
both sides--public service lawyering and also private practice.
He has also served on charitable boards, such as the
Neighborhood Legal Services Association, United Mental Health,
and Performing Arts for Children.
I know Terry quite well. He was departing the State House
of Representatives as I was joining the State Senate in 1991.
He ended his service briefly, though, only to shortly
thereafter take on a very difficult project, which was the
drafting of a charter for our county of Allegheny, 1.3 million
constituents there, a very difficult task that he took on, one
that took lots of hours and a lot of legal skill, and
successfully prepared a charter for that county to proceed with
a much more modern form of government.
His varied experience as a trial attorney also led him to
be nominated to serve in a vacancy on our family court, where
he served with much distinction as well. I know that he will
also serve Western Pennsylvania and the Nation well on the
district court.
I thank you for the opportunity today and I wish both of my
friends good luck.
Senator Kohl. Thank you so much.
There is a vote that will require a 10-minute recess. We
will be back.
[The Committee stood in recess from 2:55 p.m. to 3 p.m.]
Senator Schumer [presiding.] At Senator Specter's request,
I am substituting for Senator Kohl to chair this hearing until
Senator Kohl returns, which should be forthwith.
Senator Specter. I ratify that statement, notwithstanding
my lack of authorization.
Senator Schumer. It is Thursday afternoon before recess and
lack of authorization does not stop much around here.
Senator Specter. As I said to Senator Schumer, I was asked
to begin these hearings, as those who were present notice, and
it is our practice to proceed when the chairman has to go vote.
Senator Schumer. OK, good. Well, then, I will ask my two
questions of Judge Shedd. They are both related to federalism
issues, which you know I care about, and let me first talk
about the Condon v. Reno privacy case, which I know Senator
Kohl touched on, but I would like to go into it in a little
more length. I guess I would have to tell you I would be
concerned about what they mean regarding your views on two
things, both privacy and the limits of congressional power.
As you know, in Condon v. Reno, you struck down the
Driver's Privacy Protection Act of 1994. That is a bill I
cosponsored and strongly supported in the House of
Representatives. The law protected citizens' privacy rights by
limiting the kinds of information that could be put in the
public motor vehicle records. It was, and still is, an
important law because personal information taken from these
records has been used to hunt down and murder people, including
the well-known case of Rebecca Schaffer, the actress who was
stalked and killed in California.
As you noted in your opinion, quote, ``Congress established
that criminals had used such information to locate victims and
commit crimes.'' Nonetheless, you held this important privacy
law to be unconstitutional because it was an unauthorized
exercise of Congress' power.
You held that Congress was powerless to protect
individuals' private personal information, including an
individual's name, address, phone number, medical and
disability and other personal information required in order to
get a driver's license. That ruling, if it had remained law,
would have imposed a broad restriction on Congress' power that
would, in essence, have prevented Congress from using its
Commerce Clause power to regulate the conduct of employees of
the State government. Your ruling also would have gutted our
ability to protect privacy rights through Section 5 of the 14th
Amendment.
As you know, you were reversed 9-0 by the Rehnquist Court,
I guess at that point both Justices Thomas and Scalia voting
obviously with the majority. They were members of that Court.
So I guess you can see that some of us in this branch of
Government would be especially troubled by this ruling, and
people like myself who have been troubled by this general trend
to what I would call conservative judicial activism going back
maybe to the 1930's, in some cases the 1890's, about what
Congress' power was and what the Federal Government's power was
in this privacy case.
So just as today there is lot of criticism about how
liberal the Ninth Circuit is--I share the revulsion of just
about everybody at their ridiculous--there is also a lot of
criticism about how conservative the Fourth Circuit is. I have
always tried to keep the courts balanced. I would say the Ninth
and the Fourth, some would argue anyway, are Exhibits A and B
in why we need moderation in the courts.
So I would like to ask you two things. First, specifically,
do you agree with the Rehnquist Court reversal of you in Condon
or--and I think it is perfectly fair for you to disagree--do
you disagree with the reversal, with the caveat that, of
course, you will abide by it because it is the law of the land?
Second, would you tell me your general views on privacy? If
you had been on the Court back in 1965 and Chief Justice Warren
had turned to you in conference about Griswold, what would you
have said? Would you have ended up in the majority or the
minority, and what are your thoughts on that?
Judge Shedd. Thank you, Senator Schumer. As to the Driver's
Privacy Protection Act, as I remember it, I was the court in
the country that got that case. I looked at it very carefully.
I looked at the issues very carefully. I didn't rush to
judgment on it. As a matter of fact, attorneys from the Justice
Department came down to argue that case in front of me.
There were two lines of precedent really to follow. After
thoughtful consideration, I thought the Printz line of cases
controlled. The second half of that case, by the way, I did
acknowledge that there is a right to privacy in information and
the category of information that the government requires that
you give them. Some circuits didn't agree with that. The Fourth
Circuit did and I did agree with that part of it.
Now, it went to the Fourth Circuit and they affirmed me. It
went to the Supreme Court. And you asked if I support it. I
certainly do, and I would say to you I tried as hard as I could
to get it right, but I got it wrong. I missed it.
Senator Schumer. Just before we get to the second part of
that first question, explain to me, then, where you got it
wrong. I mean, did you think Congress didn't have the power?
Did you think Congress didn't make the right findings? It is
clearly not on a privacy basis. You have just said that?
Judge Shedd. Right. This is the Printz line of cases that I
followed. The Supreme Court had said that the Federal
Government could not commandeer State officials to undertake
their objectives. In my analysis, I thought by fining State
officials if they didn't follow the dictates of Congress, I
thought that was the precedent that I should follow. And the
Supreme Court said in their opinion this is not commandeering.
I would say, Senator Schumer, as these issues come up and I
look back, I think I was the first judge in the country to have
it. I looked back to sort of wonder did I miss it that badly
and what other judges might have thought about it. And I
checked to see that at the time that issue got to the Supreme
Court, 16 judges had ruled on that issue. Eight had ruled
constitutional, and eight, including me, had ruled
unconstitutional. So there was just a split among judges.
But the Supreme Court said I followed the wrong precedent.
They actually commented more on the Fourth Circuit decision
affirming me, but I accept that, too, as a comment on my
ruling.
I would say this, though. Also, Professor Chemerinski from
Southern California, who filed an amicus brief with the Supreme
Court asking them to overturn the Fourth Circuit--I recently
read a law review article by him saying they got the decision
right. The result was right, but he thought that the Supreme
Court had not done a good case in which precedent you are to
follow. And he wanted them to overturn all the precedents that
I had followed. I just followed the wrong precedents, but that
was my reasoning for doing it.
Senator Schumer. Because I am not familiar with the Printz
case and its detail, your objection was the method by which
they required States to----
Judge Shedd. Yes, sir.
Senator Schumer. Had they withheld money to States, you
would have had a different ruling?
Judge Shedd. Let me say this, Senator, in a general
response. I think that would have been a different analysis.
Senator Schumer. How about the next part of my question?
What would you see if Chief Justice Warren pulled you aside in
1965 and asked you about the right of privacy in general and as
it affected the Griswold case, in particular?
Judge Shedd. Let me say this. In 1965, what would I have
said, or what would I say now?
Senator Schumer. Well, I asked in 1965, but you can add
what you would think now.
Judge Shedd. I am not trying to be coy, but I would want to
say this. I am reluctant to talk about a specific fact
situation. I would like to tell you why. First of all, I have
found out you can think of any kind of fact situation that may
never come in front of a court and it likely can. And I would
feel if I commented on a fact situation, I would have to recuse
myself if I were on the court that considered it.
Second, I am a little concerned about general
characterizations because I have found out in reviewing cases--
just as you, I think, made a very sharp observation about
withholding money and would that change the analysis, you have
to be careful about the specifics of the law and what the law
is at that point and the fact situation.
I can say this to you, I can say this to you. I think I
would have said then and I say now I think it is beyond doubt
that the Constitution does contain the concept of privacy.
Senator Schumer. And how about as it affects a woman's
right to choose? Does the penumbra of privacy extend that far,
in your opinion?
Judge Shedd. Let me say this. Again, I would rather not
comment and I want to tell you why, rather than give you my
personal views about an issue that is not in front of me. I
don't comment on issues because if somebody were to raise such
an issue in front of me sitting, I think it does a----
Senator Schumer. Well, let me go to the Griswold case, in
particular. That is already resolved. We have no trouble with
you talking about that because that is resolved. And I have to
tell you--and I am just speaking for me as one member of the 19
members of this Committee--I think you have an obligation to
tell this Committee, to tell the Congress, and to tell others.
You are being considered for elevation to an extremely
important position, a lifetime position, and to simply say that
you don't want to comment, you are sort of giving it to me both
ways. You are saying, on the one hand, you don't want to
comment based on a specific fact situation because it might
come before the court. That is a 1 in 20 million chance. Then
you are saying you don't want to comment generally because you
don't know the specific facts. So you are just saying you don't
want to comment and to me that is not acceptable, at least to
get my vote.
Judge Shedd. Well, just let me say this, Senator Schumer. I
just feel like judges should not give their personal views on
hypotheticals. As to Griswold, I complete support that
decision.
Senator Schumer. You do?
Judge Shedd. Yes, I do.
Senator Schumer. So you believe that the right to privacy,
as embodied in the Constitution, would support a woman's right
to choose?
Judge Shedd. Let me explain. I am not trying to be coy with
you. I am just saying from my perspective I accept that. That
is the law. I would not do anything other than apply the law.
And what I personally think--you might well like my personal
views. I just don't think that that is what I should be doing.
I understand your position. People don't know my personal views
because my personal views have not a whit to do with how I
decide cases.
Senator Schumer. Judge Shedd, do you know what we have
found? I know there are some who view, well, the law is
interpreted from on high and it is objective, regardless of the
person's views. We find certain exceptions. We find one judge
who was nominated who was conservative becomes a liberal, or a
liberal becomes a conservative.
But, overwhelmingly, people end up interpreting the law and
it ends up being fairly consonant with their views. It is not
that you have random scattering of liberals and conservatives
on issues. So to me it is not exactly accurate to say there is
just some interpretation of the law apart from ideology that is
divined as we priests of the law divine it.
I am going to submit these questions to you in writing and
ask you to think about it and elaborate. But I would say to you
again, if you are unwilling to answer them in any more specific
way, I don't think you are fulfilling your obligation as you
come before this hearing.
We are not just here to find out if you are a nice fellow,
a good family man, and never violated the law. We are here to
find out what kind of judge you would be, and the way you would
judge involves your legal abilities and it also involves your
views, because legal abilities don't inexorably lead to the
same decision. That is why we don't have just one judge, or
some computer by now or some textbook interpreting this. So I
am just telling you I feel strongly about it. I don't feel it
is fair to ask us to vote yes or no on you without
understanding those views.
I have one more question and I am going to be brief about
it because I know Senator Specter is waiting. Since I had one
two-part question, now I have my second question, because I
promised him it would be two questions.
Senator Specter. I count 14.
[Laughter.]
Senator Schumer. Well, they have subparts, as well.
Just tell me a little bit about Crosby v. South Carolina. I
add your ruling in that privacy case with your ruling in
Crosby, where you held the Family Medical Leave Act to be
unconstitutional on 11th Amendment grounds, and that makes me
nervous. Again, I think that you sort of usurped Congress'
power in that regard.
Do you want to explain to me your decision on that one and
what assurances you can give us that you will show proper
deference to the elected body's power here?
That will be my last question and I will not ask any sub-
questions so Arlen can get to his quick, single question.
Judge Shedd. Thank you, Senator Schumer, and I will accept
those questions and if I can give you an answer to make you
more comfortable on the other questions you asked, I will
undertake that.
Second, let me say maybe to make you a little more
comfortable, I think you probably do know, but on the Gun-Free
School Zone Act, which was overturned by the Supreme Court in
Lopez, I had that case presented to me as a case of first
impression in the Fourth Circuit and I upheld the
constitutionality. Now, the Supreme Court said I got it wrong,
not my case, but the idea. But I upheld that against
constitutional challenge. I just tell you that.
Senator Schumer. That is interesting and matters to me.
Judge Shedd. And I do believe--I have great respect for the
legislature, for Congress. Both having served here as a staffer
and just my general jurisprudence, I do indeed.
Senator Schumer. Tell me a little bit about Crosby.
Judge Shedd. I will tell you about Crosby. Senator Schumer,
in our district we have a--maybe it is only in our district--we
have a local rule that says all employment cases are referred
automatically to the magistrate judge. So we don't get those
cases on first blush.
I will tell you this, that over the last three or 4 years I
have tried to encourage my colleagues to change that rule. I
think those employment cases should be treated the same as
others.
But this Crosby case went to a magistrate judge on
automatic referral. When it came back up, in that his
recommendation--I have to accept it, but it is his
recommendation to me--he said that the Family Medical Leave Act
was unconstitutional because Congress overstepped its bounds.
The plaintiff didn't object in that case. I could have just
probably rubber-stamped that and nobody maybe would have ever
learned about it. But I noticed that that call of the
constitutionality of an act of Congress into question--I asked
the Justice Department to intervene and give us their views, to
argue that case.
By our practice, that goes back to the magistrate judge. It
came back up from him. He reached the same conclusion. I saw
the Justice Department brief; I read it at that time. I looked
at all the cases, and I remember specifically having
discussions about this and I was sure the case was going to go
to the circuit courts. I was sure it wasn't going to move up. I
thought his analysis was right.
Now, just let me say, as I understand it now, either seven
out of eight or eight out of nine circuits who have looked at
that issue are in accord with that. But that is what I did in
that case, Senator.
Senator Schumer. I may just ask, Mr. Chairman, that I ask
additional questions in writing on Crosby as well.
Thank you, Mr. Chairman.
Senator Kohl [presiding.] Thank you very much.
Senator Specter?
Senator Specter. Judge Shedd, just one more question on the
Condon v. Reno case, and I really mean one question. You had
come to your conclusion based upon two Supreme Court decisions,
New York v. United States and Printz v. United States. And as
noted, you were reversed nine to nothing.
What were the principles in those two cases which you
misapplied?
Judge Shedd. It was a concept, Senator Specter, and I
appreciate that question, that Congress could act, but Congress
could not commandeer State officials to carry out a Federal
objective. And I thought, looking at the Privacy Protection
Act, where Congress decided to protect that information and
thereby fine State officials who released that information--I
thought that was, in essence, the principles the Court was
setting out in the New York and Printz cases.
Senator Specter. Judge Shedd, in United States v. Brown,
you upheld the authority of Congress to legislate on a gun-free
area near schools, and you were reversed by the Supreme Court
five to four. I think you got it right, not wrong, five to
four. I understand that you are bound by that decision, but you
may be bound by a different interpretation 1 day because the
exercise of the Commerce Clause had gone on for 60 years and we
may find that swinging back just a little differently.
Judge Shedd, I am advised that the South Carolina NAACP
opposes your nomination. Do you think that is justifiable
opposition?
Judge Shedd. Honestly, Senator Specter, I don't think that
it is. I don't think that at least when I have looked at the
cases that they point to, I don't think they provide a factual
basis to draw the inference that they say.
Senator Specter. What cases are they pointing to, as you
understand their position?
Judge Shedd. Well, there are a number of cases. It is the
Schults decision that I had. There is a Tessman decision. There
is a Lowry v. Seamless Sensations. They claim, as I understand
it, that those cases and ones like them indicate that somehow I
don't like employment cases and I don't treat----
Senator Specter. Judge Shedd, we are very close to the time
when another vote is going to be called and we have some more
nominees.
Judge Shedd. OK.
Senator Specter. Those are very important answers, but what
I would like you to do is submit that for the record.
Judge Shedd. Sure.
Senator Specter. I think that is going to require a
detailed analysis, but I would like you to pick those cases up,
because that is a very significant consideration, and identify
those matters and give us a detailed written response.
Judge Shedd. May I say one thing about that?
Senator Specter. Sure.
Judge Shedd. Those cases--there was no comment by me on the
merits. Those were jurisdictional matters. They had
jurisdictional defects, but I will be glad to answer that for
you in writing.
Senator Specter. Well, jurisdictional cases have a way of
sliding across the line sometimes, depending upon the facts and
depending upon the legal conclusions, but I would be interested
in the details of your reasoning.
Judge Shedd. Sure.
Senator Specter. Just one final question, and I mean just
one final question. On the case involving the palmetto trees,
this is an extract of a quotation which may be out of context,
quote, ``What if an environmentalist is upset that the palmetto
tree is on the State license tag? An environmentalist says I am
very upset about that because that reminds me that palmetto
trees were cut down to make Fort Moultrie and I find that
offense. It chills my rights to have environmental groups come
to South Carolina. Isn't that the same constitutional claim,''
close quote.
Would you prefer that you hadn't used that analogy, or can
you explain the justification for it?
Judge Shedd. Senator Specter, what I was doing there was I
was probing them on their constitutional challenge to the
government action of flying that flag. And part of their answer
was--this is give-and-take and just to probe to see what their
answer was. I didn't rule on it. I was just trying to
understand the parameters of their argument.
And the lawyers said to me basically the flag should come
down because it is controversial. I was pointing out, I thought
quite properly, at least in an exchange with them that just
because government action is controversial, that is not enough
to state a constitutional claim.
And I think at some point the counsel said to me, well,
there is also a right of association because people who are
offended by that flag won't travel in-state to meet with me.
And I was just showing him that that may not be a strong enough
constitutional argument on that point. That was all. It was
just by way of analogy.
Senator Specter. A final question. You commented that you
would bring moderation to the Fourth Circuit. Could you amplify
what you mean by that?
Judge Shedd. I think that I would be an influence maybe
that is not exactly there. I have a background that I think is
different from most of the judges who are there now. As I said,
I think my background as best I can tell probably closely
mirrors Judge Gregory, very much a working-class background,
and also that I bring more Federal trial experience. I would
bring that if I am confirmed to the Fourth Circuit than anybody
sitting with them now.
Senator Specter. Thank you, Judge Shedd. Thank you, Mr.
Chairman.
Judge Shedd. Thank you.
Chairman Leahy. [presiding.] Thank you.
You haven't gone yet?
Senator Edwards. No.
Chairman Leahy. Well, you go right ahead.
Senator Edwards. Thank you, Mr. Chairman. I appreciate
that.
Chairman Leahy. You are on my blind side. I apologize.
Senator Edwards. Good afternoon, Judge. How are you?
Judge Shedd. Good afternoon. Thank you.
Senator Edwards. Glad to have you with us.
I just wanted to make one comment about your upholding the
Gun-Free Schools Act. If I remember correctly, that decision
was before the series of cases out of the Supreme Court that
struck down laws under the Commerce Clause. I think around the
time you reached that decision, it would have probably been 40
or 50 years since a U.S. Supreme Court decision had struck it
down. So you were following pretty clearly established
precedent in that regard, although the law itself was new to
you, correct?
Judge Shedd. I think that is correct. I remember there was
a very vigorous argument against the constitutionality of that
statute. I can't say otherwise. I think you are right on----
Senator Edwards. I believe it had been decades since a law
like that had been struck down.
Judge Shedd. It may well have been.
Senator Edwards. I want to ask you about a couple of
specific cases, if I can. The first one is the Amanda Roberts
case, a sexual harassment case, and I am going through a series
of facts as I understand them and if any of these are wrong, I
want you to tell me and then I want to get your explanation
about why you reached the decision you did.
This was a case that she brought where she swore that her
supervisor had commented on her breasts, asked her graphic
sexual questions, bought her panty-less pantyhose, frequently
stood behind her and rubbed her shoulders while trying to look
down her shirt. Actually, there is more than that; it goes on
from there.
The case was first before the magistrate on a motion for
summary judgment. The magistrate ruled that that be denied and
that the case go to trial. You disagreed with the magistrate
and entered a judgment for the company on summary judgment.
Your analysis, as I understand it, was that she had
objectively, based on an objective look at the evidence,
suffered harassment, but, and I am quoting now from your
decision, ``there was no evidence she perceived her environment
to be abusive.''
Let me just ask you about a few facts that we saw in this
case. One, she did, with her co-worker, report her boss'
conduct to the corporate headquarters. She wore--I guess this
is in an affidavit; I am not sure from what I have here--that
she told her supervisor that she didn't want to hear these
comments and that she found them offensive, but he paid no
attention to her objections. Third, she quit her job. Fourth,
she filed a lawsuit saying she had suffered discrimination.
As you well know from all your experience, on a motion for
summary judgment you are required to give the plaintiff the
benefit of the doubt, without going through the legal
terminology, including any inferences from the facts the
evidence shows.
Can you tell me whether you are aware of other cases--and I
wondered if this was the basis for your ruling--are you aware
of other cases holding that a jury could not find that a
plaintiff who had reported misconduct and complained about it,
quit her job and filed a lawsuit as a result, subjectively felt
that she had been harassed?
First, you should tell me whether I properly understand the
reasoning that you had, because I just got this from your
decision.
Judge Shedd. Thank you very much, Senator Edwards. Let me
give you a little more background and tell you how I got to
that decision.
Senator Edwards. Sure.
Judge Shedd. As to other lawsuits, I don't know about this.
But as I understand the law and I understood the law, for a
hostile work environment there is a two-pronged test. It is the
objective view of it, what would a reasonable person think of
it.
Senator Edwards. Whether she subjectively felt harassment.
Judge Shedd. And whether she subjectively felt that
herself.
Senator Edwards. Right.
Judge Shedd. I said in my opinion it was objectively a
hostile work environment.
Senator Edwards. Right. I saw that.
Judge Shedd. But I read her deposition very carefully in
this case and this is what I saw, that she said she left her
job, the environment, because she wanted to go to work for her
boyfriend at a convenience store, and that she--the questions
were asked, well, why didn't you want to work? She said, well,
things are wishy-washy, and she also recommended to her friend
that her friend, a female, go to work in the position she was
leaving. And when asked about the boss that supposedly did
those things, she said he is a nice guy to work for.
So that is what I looked at for her subjective intent, and
I thought that necessarily, Senator Edwards, it has to be more
than a filing of the action or making the complaint because
that is part of the objective side of the equation.
Senator Edwards. I agree with that.
Judge Shedd. I just looked at it on the subjective side as
to what she did, and I thought that--as you know, you can't
make a material issue of fact by having dispute on the same
side of the issue.
Senator Edwards. Right, right.
Judge Shedd. And that is how I analyzed that case.
Senator Edwards. I guess what troubled me about it was it
is a state of mind thing that you are talking about. At least
in my experience, those cases are usually--and probably in your
experience, too, those are usually left for the jury to
determine.
It looked to me from looking through the evidence that
there was, at worst case for the plaintiff, some conflicting
evidence on that subject. That is what troubled me about it.
Judge Shedd. But if the conflicting evidence is on her
side, I think the summary judgment standard is a little bit
different. The standard is one side--you can't have a
deposition--not that she did, but you can't have a deposition
in which you state a fact and then come back later and file an
affidavit to contradict that and make that a material issue of
fact, I think the law is.
But I want to make clear to you now, if she had said a
friend of mine wanted that job and I said absolutely it is
terrible, don't go to work for that guy, I think quite frankly
the decision would have been different because that was the
evidence I looked at as to her subjective view of what
happened.
Senator Edwards. Let me ask you a broader question. I got a
letter from law professors in North Carolina, 16 of them, I
guess, who talked about some of your opinions. And in fairness
to you, I think I also just got a letter from some law
professors in South Carolina who----
Judge Shedd. How many?
Senator Edwards. I don't remember the number, but they were
very supportive of you. The ones in North Carolina were not.
But I wanted to ask you about an assertion that they made
and whether this is accurate or not because I don't have any
way of knowing. They said that in the 66 cases that presently
appear in the Lexis online system--I am reading from the letter
now--``Judge Shedd appears never to have granted relief to a
plaintiff in an employment discrimination case, although he has
granted summary judgment motions in favor of employers.''
Let me just ask you first, is that accurate? Have you
granted relief to a plaintiff in an employment discrimination
case?
Judge Shedd. Senator Edwards, I would say now it depends on
what those law professors mean by relief, because as you
probably know, in an employment discrimination case almost
never does a plaintiff file for summary judgment.
Senator Edwards. Right.
Judge Shedd. So is relief meaning that I have ruled for the
defendant? Absolutely not. I have denied summary judgment. I
have given plaintiffs a chance to modify their filing. I have
refused to grant defense motions to dismiss, absolutely.
Senator Edwards. As opposed to not allowing the defendant
to win on a motion, have you ever had occasion to rule on the
merits of the case yourself as the judge, as opposed to it
being a jury question?
Judge Shedd. Not that I can think of because if summary
judgment fails, then it becomes a jury question.
Senator Edwards. So in the cases that you did not rule in
favor of the defendant, what you are saying is they went to
trial, to a jury?
Judge Shedd. Or settled, something like that.
Senator Edwards. Do you have any idea what percentage of
the cases you allowed to go to trial, as opposed to being
decided summarily?
Judge Shedd. I do not know that.
Senator Edwards. Do you know whether a plaintiff has ever
prevailed in your courtroom in an employment discrimination
case?
Judge Shedd. Yes, sir, they have on a number of occasions.
Often, those cases don't go all the way to trial. They get
settled, they get settled.
Senator Edwards. Has the plaintiff prevailed in a case that
was decided either by you or by the jury?
Judge Shedd. I can't ever think--quite frankly, I am not
even aware of very many employment cases ever finishing in a
jury trial. I have had them start and the plaintiff settled the
case, received a settlement, to end the litigation. It is very,
very rare, I think, from my experience that it gets that far. I
have had cases where plaintiffs--yes, sir, I have had cases
where plaintiffs have recovered, not by my ruling because it is
not in a posture that I can rule that I can think of in an
employment case.
Senator Edwards. What I am trying to ask you is you rule
for the defendant and they get out on your ruling. Scenario
one. Scenario two: the case is settled and the plaintiff
recovers. Scenario three: the case goes either to you or to a
jury, depending on the nature of the case.
Judge Shedd. I have never had one come to me.
Senator Edwards. In the third category, has the plaintiff
ever won?
Judge Shedd. Let me say I can't ever remember that I have
had an employment case that was tried to me as a judge.
Senator Edwards. OK. Well, then, let's go to the jury.
Judge Shedd. And then to the jury, I can't remember, but I
am just saying the practice is in our district--I just can't
even think of any case in our district wherein the employment
case goes to a verdict for the plaintiff. Those cases--at least
my experience has been they settle; they settle those cases.
But I can't think of one right off. I could see, but I have had
plaintiffs be successful in front of me because of my rulings,
not granting the defense what they wanted.
Senator Edwards. Mr. Chairman, do I have time for one more?
Chairman Leahy. We do have a vote on, as you know, but go
ahead, of course.
Senator Edwards. Let me just do this one last area and then
I will be finished. Bear with me, Judge.
The last thing I want to followup on is the questions that
you got from--I will followup on some questions that Senator
Schumer just asked about this case involving--I guess it is the
Condon case involving the Driver's Privacy Protection Act.
I am aware of, I think, eight to ten cases since 1995 where
the Supreme Court has struck down a congressional statute on
federalism grounds. Can you tell me whether you are aware of
any case where a lower court, such as you were sitting in this
case--where a lower court has struck down a statute, a
congressional statute, on federalism grounds and then the
Supreme Court reversed it, which is what happened in this case?
Judge Shedd. Let me think. Well, on Lopez, I guess that was
Commerce Clause. Would you consider that, the guns out of
school Act? I think the lower court struck that. I did not.
Senator Edwards. Right.
Judge Shedd. Senator Specter said that the Supreme Court,
you know, reversed me five to four, but that wasn't my
decision. That wasn't my decision. They dealt with the other
decision. I would have to think about that to be sure.
Senator Edwards. OK. So we don't take too much time on this
now, would you mind finding out that information and giving me
an answer to that?
Judge Shedd. Sure.
Senator Edwards. Basically, the question is a case where a
lower court rules, the Supreme Court says it is
unconstitutional, and the Supreme Court reverses and finds, in
fact, that the statute is OK. I am just asking you whether that
happened any other times during this timeframe.
The second thing is you found, as I understood it, and I am
reading from your opinion now, that the law was
unconstitutional because it--I am paraphrasing now--invades the
rights of States. And then you say--this is a quote; what I am
about to read is a quote--``Unquestionably, the States have
been and remain the sovereigns responsible for maintaining
motor vehicle records, and these records constitute property of
the States.''
And then you went on to say the Act was unconstitutional
because, quote, ``Instead of bringing the States within the
scope of an otherwise generally applicable law, Congress passed
the DPPA specifically to regulate the States' control of their
property''--i.e., motor vehicle records--``and to require the
States to regulate their citizens' access to and use of these
records.''
Here is my question: It is my understanding that a lot of
the airports in this country are private airports, that they
are operated by State and municipal entities, much like these
drivers' records in South Carolina. They are especially
regulated by the Congress and by the FAA, and the Congress can
say, for example, that you can't have a runway shorter than
7,000 feet, or you can't have an airport without a barb wire
fence, or you can't allow airplanes from particular places like
Cuba or Libya to land. I am just trying to figure out whether,
under your reasoning, that kind of regulation and control would
be a problem.
Let me give you an example. Let's suppose you use the
language and the reasoning in your case and instead of talking
about records, which your case was about, let's say commercial
airports. So we say instead of bringing the States within the
scope of an otherwise generally applicable law, Congress passed
these airport rules specifically to regulate the States'
control of their property--i.e., commercial airports--and to
require the States, in turn, to regulate their citizens' access
to and use of these commercial airports.
I guess my question is whether the reasoning that you use--
and I want to be clear now that I am talking about State-owned
airports here--whether the reasoning that you use would limit
our ability to impose at a national level security measures in
those airports, which, of course, we have been doing recently,
particularly since 9/11.
Can you talk about that?
Judge Shedd. May I address that in general terms?
Senator Edwards. Sure.
Judge Shedd. Off the top of my head, that question--I would
say to you the analysis would have to look at those airport
regulations, considering the fact that Congress has regulated
in that area. I know you are talking about separate State-owned
or community-owned airports, but I think under the scheme of
not really a preemption, but the fact that there is Federal
regulation of Federal aviation generally--I think that would
lead to a different analysis.
Senator Edwards. I don't know how closely you followed the
argument in your case in the Supreme Court, but this is not
original thought by me. This is an argument that the Solicitor
General made, I think, in the Supreme Court with respect to
that. So it apparently concerned the Solicitor General under
these circumstances that this was a possibility.
Can you tell me something that would alleviate that
concern?
Judge Shedd. I could say this: I think the analysis is
entirely different. I think the analysis would be different
because, again, I pointed out that those State----
Senator Edwards. You think the analysis is different
because the Federal Government had regulated in this area
before. Is that what you are saying?
Judge Shedd. Yes, yes, sir.
Senator Edwards. OK, all right. Has the Federal Government
regulated privacy before this statute, the Driver's Privacy
Protection Act?
Judge Shedd. Well, they have, but they haven't done it in
the context of a driver's license. That is information that the
State requires you to give them. I separated it out on that.
Yes, the Federal Government has regulated privacy--wiretapping
statutes and other things.
Senator Edwards. Right, right.
Judge Shedd. Yes, they have.
Senator Edwards. Thank you, Judge. Thank you very much.
Judge Shedd. Thank you.
Chairman Leahy. We have a vote on. We will stand in recess.
Senator Kohl is on his way back.
[The Committee stood in recess from 3:39 p.m. to 3:43 p.m.]
Senator Kohl [presiding.] At this time, we will renew our
hearing and I will call on Senator Sessions for his questions.
Senator Sessions. Thank you, Mr. Chairman.
I am really pleased to see all of you fine nominees here.
Judge Shedd, it is a particular pleasure to see you. I know
that they want to ask you a lot of questions about a lot of
tough cases, but I don't think ``tough'' is maybe the perfect
word for it. It is just cases that are complex and require
judicial wisdom and the best judgment you can give it, and it
is not always clear what the Supreme Court is going to come out
and say ultimately.
But your reputation across the board, as counsel on this
Committee, was above reproach. When I was a member of the
Department of Justice, I knew of your reputation and it was
extraordinary and sterling. You had a great reputation here and
you have had a great reputation as a judge.
People can knit-pick your record, but they won't find
anything, in my view, that is unworthy. It is particularly
distressing, and I think unhealthy and wrong--I almost want to
use the word ``despicable''--to take somebody's comments in a
Socratic-type discussion with lawyers and try to twist that so
as to represent an opinion and distort a person's testimony.
Those comments, if anybody had been present in the room, would
never have been interpreted that way, and I am sorry that you
have had to undergo some of that.
It has been really impressive to see this group of South
Carolina law professors who submitted a strong, strong letter
on your behalf, signed by almost one-third of the faculty
members at the University of South Carolina School of Law,
including Professor Dennis Nolan, the Webster Professor of
Labor Law and Chair of that department; Professor Ladson Boyle,
Charles E. Simon Professor of Federal Law; Professor Ralph
McCullough, II, Distinguished Professor of Law and American
Trial Lawyers Professor of Advocacy, and Chair of the American
College of Trial Lawyers--that is the plaintiff group--and
David G. Owen, Carolina Distinguished Professor of Law and
Director of the Office of Tort Studies.
So this is a bipartisan group of professors that have
endorsed you with a strong comment, and actually dealt with
several of the issues in depth that I think clearly justify
your position.
I will just say, Mr. Chairman, I know that there might be a
temptation or tendency to say that the Fourth Circuit is
somehow a particularly conservative circuit. I think it is a
solid circuit that is hard-working, carries one of the heaviest
caseloads in America, and they follow the law consistently.
They do not have anything like the reversal record that the
Ninth Circuit has. That is the circuit out of which we have the
Pledge of Allegiance matter that caused so much disturbance.
One year, the Ninth Circuit was reversed 27 out of 28 cases. I
have studied this. Over a decade, no circuit approaches their
reversal record. One year, they had 13 unanimous opinions by
the U.S. Supreme Court reversing their opinions.
So I think the Ninth Circuit is a circuit that has
problems. No other circuit has anything like the consistent
record of reversals of the Ninth Circuit, and that is because
it is an activist circuit. The Supreme Court has felt an
obligation to contain their opinions and not allow them to run,
although they have so many cases in that huge circuit that they
are really not able to monitor it closely enough, I am afraid.
Judge Shedd, with regard to the Gun-Free School Zones Act,
which was an interstate commerce case in which the U.S. Supreme
Court concluded that the Congress had overreached, when that
case came before you, you voted to uphold the congressional
enactment. Is that right? You voted, I guess, as somebody would
say today, on the liberal side or the left side.
Judge Shedd. Well, I will let you characterize it, but I
did vote to sustain the Act. That is correct.
Senator Sessions. Later, the Supreme Court concluded that
there was not sufficient interstate commerce nexus. Now, I know
some lawyers here want to forget that there is in part of our
Constitution a requirement of interstate commerce connection on
many of the matters that are legislated.
Could you just simply tell us in your opinion what the
Supreme Court was saying, as you understand it, in that Gun-
Free School Zones Act and maybe give us a perspective of what
this commerce issue is about and why people could disagree on
something this complex?
Judge Shedd. I can do that, in part, Senator Sessions, by
talking about some of the arguments in front of me as I was
asked to decide the constitutionality, and that is just as sort
of a primer on the law. I am sure you understand this, but you
asked me to say it, so I will.
Senator Sessions. No, not well enough.
Judge Shedd. Well, under the Commerce Clause, Congress
has--under the Constitution, has tremendous power. It is just
that the Supreme Court sees that under the Commerce Clause that
power is not a hundred percent complete that Congress can act
and do anything they want to; that if there is an interstate
nexus--and basically it is even broader than that; that is, if
an activity touches on or affects interstate commerce.
Quite frankly, we can take it back to some of the very
valid desegregation cases; I think the one with Ollie's
Barbecue in Atlanta, which the Court reached to them because I
think maybe the mustard or catsup on the table of the barbecue
place had come interstate, and maybe travelers went there, as
well. But as long as there is some connection or affecting of
interstate commerce, then, in fact, Congress has broad
authority to act.
Let me say what commentators have said because I am trying
very much to stay away from me adding anything else to my
rulings. It would be that in that schools free of guns zone
act, the Lopez case, that there wasn't the nexus, there wasn't
the interstate nexus that was required.
And, quite frankly, you know--and I know you prosecuted
cases as a U.S. Attorney--felon in possession is a Federal
charge, but--and I have had these cases--you have to show the
interstate nexus. You have to show that that gun at some point
traveled in or about or across the State line. You have to show
that.
Senator Sessions. That is correct, Mr. Chairman. I became
somewhat of an expert in my office when I was an Assistant
United States Attorney and I learned to prosecute the cases
under 1202(a) Appendix. Somehow, that was one of the possible
charges you could utilize on it because of the complexity of
that thing.
But, fundamentally, Congress cannot act on an activity that
is solely in-state and has no outside connection to it, and to
rule otherwise would be a historic expansion of Federal power
that we have never had. So this Supreme Court is wrestling with
where that line should be.
The statute did not require in the Gun-Free School Zones
Act that the gun travel in interstate commerce. It simply made
it illegal, a Federal crime, for a person to possess on a
schoolyard a gun. The Supreme Court said it wasn't even an
element that it be transported in Interstate Commerce and they
couldn't do that.
You were wrestling with that same issue to some degree with
the driver's license deal, and I guess you turned out to be
wrong on both counts, didn't you?
Judge Shedd. I am sorry you said that, but that is correct.
Senator Sessions. But that is all right. I mean, that is
the way life is. I mean, you have to call opinions. On the
driver's license case, you concluded there was not sufficient
nexus, and the Supreme Court found that there was. On the other
one, you approved it. So I just think that is a pretty weak
basis to complain about your fitness for the bench.
Judge Shedd. May I say, Senator Sessions, I want the
Committee to understand I wasn't trying to reach any result
because of what I felt. I think ``wrestling'' is a good word to
describe it, what judges have to do. And I was trying to get it
right; that is what I was trying to do. And as you pointed out,
I didn't get it right in either case, but I was sure trying to.
Senator Sessions. And with the DPPA case, if another one
came before you today, would you hesitate to follow the Supreme
Court ruling?
Judge Shedd. Not in the slightest.
Senator Sessions. You are not obsessed with some States'
rights view here that would cause you to not follow a Supreme
Court ruling, are you?
Judge Shedd. Absolutely not.
Senator Sessions. It has been made clear now and you would
follow it?
Judge Shedd. I said I got it wrong. I would follow Supreme
Court precedent, and I would do that without any bitter feeling
about it. Of course, I would apply the law.
Senator Sessions. With regard to that case, the professors
at South Carolina wrote in some depth about it and they said,
``While the Supreme Court ultimately ruled that DPPA
represented a valid exercise of Congress' commerce power, 7 of
the other 15 lower court judges who considered the issue prior
to the Court's decision agreed with Judge Shedd.''
So 7 of the 15, almost half of the 15 lower court judges
who had the same question you did agreed with you. Among those
were Judge Barbara Crabb, the Chief Judge of the Western
District of Wisconsin, an appointee of President Jimmy Carter,
and Judge John Godbold, of the Eleventh Circuit, one of the
great judges in America, a Johnson appointee who headed the
Judicial Conference and who was chief judge in both the Fifth
and the Eleventh Circuit and is a brilliant judge and certainly
not considered a conservative.
In addition, several Governors, including Governor Jim
Hunt, of North Carolina--I know my good friend here, Senator
Edwards, is from North Carolina. His Governor agreed with you,
and so did his attorney general, Mike Easley, I believe, who
had joined in the brief on the side of your opinion.
These law professors note, ``To us, the disagreement among
lawyers, judges, and scholars regarding whether DPPA was
constitutional in the wake of the Supreme Court's decisions in
the Printz and other opinions reflects the difficult question
presented in this case. Judge Shedd's opinion represents a
reasoned, albeit later overruled, approach to the question.''
So I think that is important for us.
Do we have a time limit here? I wanted to mention a couple
of things.
Senator Specter. Senator Sessions, we have a Judiciary
Committee briefing on the FISA matter which was scheduled to
begin at 3:30.
Senator Sessions. I will be glad to yield if you need to
go.
Senator Kohl. We will submit any other questions you may
have for the record.
Senator Sessions. I will be glad to do that.
Senator Kohl. We thank you so much.
We appreciate your being here today, Judge Shedd. I am
particularly impressed with your wisdom in upholding the
constitutionality of the Gun-Free School Zones Act. I wrote it,
so you made a good decision.
Judge Shedd. You did a good job writing it, too. Let me
commend you.
[Laughter.]
Senator Kohl. Thank you for being here.
Senator Sessions. That was a good answer.
Judge Shedd. Mr. Chairman, may I leave?
Senator Kohl. Yes, you may.
Judge Shedd. Thank you very much.
Senator Kohl. Thank you so much.
[The biographical information of Judge Shedd follows.]
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Senator Kohl. We will now proceed with our two nominees
from Pennsylvania, and I will defer my questions until you
finish, Senator Specter.
Senator Specter. Well, no. Let me defer to you, Mr.
Chairman.
Senator Kohl. Go ahead, go ahead.
Senator Specter. Judge McVerry, one of the critical issues
which this Committee is concerned about is judges interpreting
the law, as opposed to being legislators, and not establishing
new laws in accordance with whatever predisposition the
individual judge may have.
What assurances can you give this Committee and the full
Senate that on the bench you will interpret rather than make
the law?
Mr. McVerry. Thank you, Senator Specter. I have been a
practitioner of the law for 33 years, and for 12 of those years
I served in the Pennsylvania General Assembly and I jealously
protected at that time, and to the extent that I was able since
that time, the legislature's prerogative to pass and enact
laws, and those laws are to be respected by the courts, in my
view.
We have a very milestone or cornerstone precept of our law
that is stare decisis, which is that we at the district court
level must follow the decisions of appellate courts, the Third
Circuit Court of Appeals and the U.S. Supreme Court. And it is
not the prerogative of the court, especially at the district
court level, to make law. It is their prerogative to interpret
law.
And I bring with me my experience as a member of the
legislative body who was very concerned about that very thing
relative to judges interpreting laws differently than they were
intended by the General Assembly, or Congress in this instance.
And I pledge to you that I will not let that happen in my
courtroom.
Senator Specter. What if you had a case before you on the
facts which was very compelling, leading you to be strongly
inclined as a matter of intuitive justice to find for, say, the
plaintiff and the reading of the appellate decisions led you to
the conclusion that judgment ought to be entered for the
defendant as a matter of law?
Would you seek to exercise any so-called wiggle room to try
to find a way to put your own stamp of justice on the case, at
variance with the legal precedents to the contrary?
Mr. McVerry. Senator, I would not, and I would not simply
for the reason of stare decisis that I just enunciated. It
would be my duty, if confirmed, to be aware of the status of
the law from a statutory perspective, and also from case
interpretations of the circuit and Supreme Court, and those
would be applied. It is not my place to attempt to interpret
the facts of a case in a way to avoid the law as has been
enunciated by Congress and the appellate courts.
Senator Specter. Judge McVerry, you will be coming to a
court which is very, very busy, and one of the great problems
in the administration of justice has been delays. The courts in
America, perhaps more the circuit courts than the district
courts, are sometimes very, very tardy, sitting on some cases
for a matter of years. We took a look at the case involving the
spill in Alaska. It has been 11 years in litigation over the
issue of punitive damages.
What assurances can you give this Committee that you will
undertake whatever hours it takes to keep a very current
docket?
Mr. McVerry. Frankly, Senator, the only assurance I can
give you is the materials that I have provided to show you that
I have demonstrated a work ethic comparable to any productive
lawyer in Allegheny County, in Western Pennsylvania, over the
course of the last 33 years. I have never been questioned in my
work ethic, both as a prosecutor, as a trial lawyer, as a
member of the General Assembly, and more recently as the
solicitor of the county and a judge on the court.
Now, I know that, if confirmed, I will be going into a
court where justice has been delayed, and justice delayed is
denied. And the reason it has been delayed is that there
haven't been appointments to make our court a full complement
for quite some time, and I will dedicate myself and the staff
that I assemble to try to keep our caseload manageable and to
keep it moving through monitoring of the cases with case
management orders, with monitoring by law clerks and myself,
and attempt to expedite matters that come before us and not
leave them languish without decision.
Senator Specter. When I started the hearing today a moment
or two before Senator Kohl arrived, I commented about what
Senator Thurmond, when chairman, had said on questioning a
nominee--do you promise to be courteous--and I noted that I
thought that was not a very meaningful question, because what
could the nominee say but yes?
But as I said, I have come to find that that is the most
important question that I have heard, and I have been here for
22 years and we have had more than 50 judges confirmed in
Pennsylvania. Senator Heinz and I had a nominating Committee,
and Senator Santorum and I do, and I am sorry to have to say
that I have had reports back about people who had made that
pledge who haven't kept it.
There may be sort of an inevitable quality when you assume
that black robe and you have a lifetime appointment and you
have a bad day and you have litigants before you or lawyers
before you to be impatient or to be rude.
I have a good idea what your answer will be if you promise
to be courteous, but I really expect you to do that as the
imprimatur of the Senate and those of us who have worked to
secure your nomination, and I think confirmation, and to really
take it seriously.
If you are inclined someday on a bad day, on a bad morning,
in an argument which is frivolous, will you promise under the
most trying circumstances to be courteous?
Mr. McVerry. I do promise to do that, Senator Specter, and
I worked diligently to do that for the 19 months that I served
as a Common Pleas Court judge in Allegheny County. One of the
admonitions that lawyers give one another in the camaraderie of
anticipation to a position such as this is don't forget where
you came from, Terry; don't forget who you were, don't forget
that you were a practicing lawyer before a judge and you have
had those experiences where you have been treated
inappropriately by a judge and your client has been treated
inappropriately by a judge.
I will never lose sight of the fact, Senator Specter, that
I am a public servant. I am there to serve the people and I
want people who come through my courtroom, be they lawyers,
litigants, or jurors, to have a meaningful, positive experience
in the judicial branch.
Senator Specter. When you were a Common Pleas judge, did
you have to stand for election, retention, or otherwise?
Mr. McVerry. I did. I had to stand for election.
Senator Specter. Senator Kohl and I might point out to you
that standing for election gives you a somewhat different
perspective from a lifetime appointment. But I have your
commitment, and we also have another hearing on the FISA
oversight work.
May I proceed with Mr. Schwab or should I defer to you, Mr.
Chairman?
Senator Kohl. Go ahead. You can finish.
Senator Specter. Mr. Schwab, you have had all this time to
prepare your answers because you know my questions. If you have
something where you have very, very strong philosophical views,
and however strongly you may feel about something, are you
prepared to make a firm, irrevocable commitment that you will
follow the law as articulated by the appellate courts and be
bound by that without any deviation to any personal views you
may have about a substantive subject?
Mr. Schwab. Senator Specter, I give you my word that I will
follow what the law is and I will work hard to discern what
that law is from the Third Circuit and from the Supreme Court.
I also assure you that I will work hard to listen to the facts,
to listen to the testimony, to understand as best I can, judge
the witnesses' demeanor, and apply the law as I understand it,
the best I can to the facts as I find them, and to make my
decision. I give you my word in that regard.
Senator Specter. While it might be considered a softball,
on the issue of not legislating from the bench but interpreting
the law, give me a brief statement of your judicial philosophy
on that issue.
Mr. Schwab. As I said in the material I submitted, I am
committed to interpreting the law, not legislating. I am
committed to judging statutes that come before me, if you are
so gracious to confirm me, in a way that gives deference to
those statutes on a constitutional basis.
Senator Specter. Someday, when it is late in the day and
you have some lawyer before you on a trademark case and the
lawyer doesn't understand the issues in trademark as you do and
there is some frivolous argument made which tries your patience
beyond endurance, will you remain courteous?
Mr. Schwab. I will work hard to remain courteous. My wife
says that I have been making improvement in that training, so I
can assure that I will----
Senator Specter. Well, beyond working hard, Mr. Schwab,
will you remain courteous?
Mr. Schwab. Yes.
Senator Specter. Just remember the commitment you made
today.
Mr. Schwab. I will, Senator.
Senator Specter. It is four o'clock, past four. It has been
a long day and there is a lot more to today, and Senator Kohl
and I sometimes become a little impatient ourselves, but we
have to run for reelection.
I know you are a hard worker, but I want your commitment
that on the Western District you will tackle all those cases
and watch your backlog and make timely decisions and not be on
the delinquent sheet.
Mr. Schwab. I can assure you that that will occur. And if
it is a comfort, on the courteous issue you know my record and
you know the bar positions I have occupied, and I don't believe
one would get consistently elected to those type of positions
if one had not dealt courteously over many years with the
people that place you and elect you into those positions. So I
think there is a record that you can judge in that regard.
Senator Specter. All right. We have your commitments,
gentlemen. These nomination proceedings are recollected
sometimes long after the fact, and not too long ago Justice
Souter said to me, I still remember the question you asked me
about whether Korea was a war or not and I still haven't made
up my mind. That has been more than 10 years ago.
Justice O'Connor had her confirmation hearing 21 years ago.
She was here 21 years ago, in 1981. So these confirmation
hearings have an effect and an impact, and I don't expect to
hear any comments from attorneys or litigants before you
contrary to your promises today, gentlemen.
Mr. McVerry. Thank you, Senator.
Mr. Schwab. Thank you, Senator.
Senator Specter. Thank you. Thank you very much, Senator
Kohl.
Senator Kohl. We thank you very much, Senator Specter, for
your thoughtful questions.
For both of you, two questions. In the past few years,
there has been a growth in the use of so-called secrecy or
protective orders primarily, as you know, in product liability
cases. We saw this, for example, in the recent settlements
arising from the Bridgestone/Firestone lawsuits. Critics argue
that these protective orders oftentimes prevent the public from
learning about the health and safety hazards of the products
that they use.
Should a judge be required to balance very carefully the
public's right to know against a litigant's right to privacy
when the information sought to be sealed could keep secret a
public health and safety hazard?
Mr. McVerry?
Mr. McVerry. Mr. Chairman, I believe that that is the case.
In other words, I believe that the court should make an
independent inquiry into requests for protective orders,
especially when the health, safety and welfare of the public is
at risk.
I think historically, or at least often--maybe I shouldn't
say historically--often, protective orders are the result of a
negotiated settlement between the parties to the litigation,
and maybe the court doesn't look into those matters, or hasn't
historically looked into those matters when maybe it should,
cases that are settled outside of the court's domain, and maybe
they are not--sometimes, I think things that are characterized
as protective orders may really be confidentiality agreements
between consenting settlers of litigation which might be
outside the realm of the court.
But to the extent, however, that a request for a protective
order is addressed to the court, I think that judges do have a
responsibility to look into the interests of the public from a
health and safety perspective.
Senator Kohl. Should those interests be primary in a
judge's consideration, or secondary?
Mr. McVerry. I don't know that I can answer that they
should be primary or secondary. I think they should be part of
the overall consideration that is being presented. I don't
think that a court should simply, because the lawyers want the
matter to be confidential, rubber-stamp that request and make
it confidential. I think that----
Senator Kohl. Well, if the judge determines that public
health and safety is involved, should he then take the position
that the secrecy agreement is not to be permitted?
Mr. McVerry. Well, it is hard to make a generalized
statement that in every statement where you make a level of
determination that the health and safety of the public is at
some degree of concern. So I can't make a generalized
statement, but I can say to you that in matters of that sort,
when I review them as a judge, if I am confirmed, that they
will be a major consideration of mine.
Senator Kohl. Thank you.
Mr. Schwab?
Mr. Schwab. Mr. Chairman, I thank you for the question and
I appreciate your sensitivity to this issue. As you know, I
spent a substantial amount of my time in trade secret cases,
and I would say 90 percent or more of those cases involve
confidentiality agreements. So I appreciate the question and I
understand the sensitivity to the issue.
I think as a judge one would have to examine each case and
determine whether the entering of this order has an effect on
the public. If it has an effect on the public, then it has to
be approached differently than a situation where there is no
public interest and there are just two litigants that are
fighting over a trade secret or a patent or some other matter.
And then when that matter comes before the court, you would
sign the consented-to confidentiality agreement.
But in the case, in particular, of a settlement in which
into the settlement agreement was placed confidentiality
provisions relating to discovery that related to public health
or safety, then I think a judge has to be very sensitive to
what is going on. And it may be necessary--and I am speaking
generally, but it may be necessary at that time to find a
separate counsel to somehow--either a governmental body or some
other entity that would provide counsel on that issue so at
least that issue as to the confidentiality of that information
as it relates to the public, that that issue would be litigated
somehow before the court.
Senator Kohl. Thank you.
Gentlemen, Federal judges serve a meaningful role in their
communities beyond hearing and deciding cases. Our vision of
trial court judges today is of people who are actively involved
beyond their courtrooms and understand the importance of such
things as drug diversion programs and alternative punishments
for juvenile offenders.
Will you each take a moment to discuss your vision of what
it means to be a Federal judge, with a focus on the importance
of each judge in their community?
Mr. McVerry?
Mr. McVerry. Mr. Chairman, I think that it is important for
all members of the profession, the legal profession, be they
judges or not, to be active participants in their community to
the extent that it is not inconsistent with their duties and
responsibilities as a member of the court.
I can think of particular instances where my wife and I are
active in church activities, and I would see that we would
continue to do that. I suppose that there are certain community
activities in which we can be involved. I can't think of any
off the top of my head right now, but I would not abrogate my
responsibility in my community simply by becoming a Federal
district court judge.
Senator Kohl. Mr. Schwab?
Mr. Schwab. Mr. Chairman, consistent with the judicial
ethics, I would remain active in the community, and I mean
community in a broad sense. Subject to the proper approvals, I
would intend to still teach at UVA at the trial advocacy
program that is taught every year there, and that includes not
only attorneys, but students that attend that course.
I would continue, if permitted, to teach the intellectual
property course that I currently teach that I think keeps one
not only active in the community, but before college students
and dealing with college students on a regular basis.
I have taught, as indicated in my material, a course on
several different occasions to about 150 women on finances as
it relates to particular women's issues, and I would continue
to teach those courses as I have the opportunity.
Senator Kohl. Mr. Schwab, in April of this year the
Committee received a letter from Jerome Shestack, a former
President of the American Bar Association and a former Chair of
the ABA's Standing Committee on the Federal Judiciary. In that
letter, he pointed out that in your testimony before the
Committee in 1988 you alleged that the ABA rated you as not
qualified for the U.S. Court of Appeals for the Third Circuit
because of your religion.
With the benefit of hindsight and knowing that Mr. Shestack
has categorically denied that any such discrimination occurred,
do you still believe you were singled out because of religion?
Mr. Schwab. Mr. Chairman, I believe my testimony--and I
have re-read it--at that time was accurate. I did not mean to
offend anybody by that testimony, but I sincerely believe that
it was accurate. And I believe my testimony at that time was
not a statement against the entire Committee in any way, and
that those people, I believe, operated in good faith.
What I did say at that hearing--and I believe it was the
truth--was that that gentleman asked me questions about my
children attending a Christian school and whether that school
engaged in any discrimination. I assured him that it did not
and that in its bylaws it expressly provided for non-
discrimination.
I was asked questions in the questionnaire that I had to
complete relating to religion, and I believe his position was
there was never any question raised at any time about religion.
And I pointed out to Senator Biden--Chairman Biden at that
time--at the Committee that there was a particular question
that did ask about religion, and I did disclose religious
information that I was an elder in a church and other religious
information in that questionnaire as it existed at that time,
which I think was in 1987. And that testimony, also, I gave
with the support and with the permission of Senator Specter.
Senator Kohl. Mr. McVerry, in the past few years, beginning
with the Lopez decision, the Supreme Court has struck down a
number of Federal statutes, including several designed to
protect the civil rights of our more vulnerable citizens, as
beyond Congress' power.
Taken individually, these cases have raised concerns about
the limitations imposed on congressional authority, and taken
collectively they appear to reflect a new federalism crafted by
the Supreme Court that may threaten to alter fundamentally the
structure of our Government.
What advice would you give Senators who are drafting
legislation to comply with the new federalism?
Mr. McVerry. Mr. Chairman, I don't presume to be an advice-
giver to Members of Congress. I think that, however, I will
insofar as I think that Members of Congress need to look at the
reasoning of the Supreme Court in making those decisions and
make a determination, as has been earlier said by Judge Shedd,
as to whether there was an effect on interstate commerce or
whether it had been proven in the preamble of the legislation.
I can't speak to the specific statutes or that case, but I
think that working with the direction of the Supreme Court in
its observations of the congressional action will give guidance
to Congress to be able to accomplish the goal that it set out
to accomplish in another form, I presume.
Senator Kohl. All right, we thank you very much, gentlemen.
Before we adjourn the hearing, we would like to place a
statement from Senator Leahy in the record.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Kohl. We appreciate your being here and we wish you
the best. Thank you so much.
Mr. McVerry. Thank you very much, Senator.
Mr. Schwab. Thank you so much.
[The biographical information of Mr. McVerry and Mr. Schwab
follow.]
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Senator Kohl. This hearing is adjourned.
[Whereupon, at 4:20 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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NOMINATION OF PRISCILLA OWEN, NOMINEE TO BE CIRCUIT JUDGE FOR THE FIFTH
CIRCUIT; TIMOTHY J. CORRIGAN, NOMINEE TO BE DISTRICT JUDGE FOR THE
MIDDLE DISTRICT OF FLORIDA; AND JOSE E. MARTINEZ, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOURTHERN DISTRICT OF FLORIDA
----------
TUESDAY, JULY 23, 2002
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The committee met, pursuant to notice, at 10:06 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Dianne
Feinstein, presiding.
Present: Senators Feinstein, Kennedy, Leahy, McConnell,
Sessions, Schumer, DeWine, Feingold, Durbin, Brownback,
Cantwell, and Edwards.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM
THE STATE OF CALIFORNIA
Senator Feinstein. We will begin the hearing. Members will
be coming in from time to time.
Before I make my opening statement, I would like to just
quickly run through the protocol for this hearing. There are
three panels that we will be hearing today. Members will be
called on the basis of the early bird rule. We will alternate
from side to side. For those that do not know the early bird
rule, it is an incentive to get members to come to committee
promptly.
There will be a vote, I think around 10:30. We will recess
for that vote. This session will run from 10 to 12:15. We will
begin again at 2 and go through to 5, at which point the
hearing will end. If we need an additional hearing, that can be
determined at that time. There will be two votes this
afternoon, I believe at 2:45, and we will do a similar thing.
We will simply adjourn and go and cast our votes and promptly
return here.
I would like to begin by saying that there are three
panels. We have three distinguished members on the first panel.
Senator Kay Bailey Hutchison is traveling and will arrive a
little late and I have agreed to take her statement as soon as
she comes in, so we will stop whatever we are doing and listen
to her when she comes in.
We will then hear the statements from the members and then
a statement from the chairman of the committee and the ranking
member.
I would like to welcome Priscilla Owen on behalf of the
Judiciary Committee. Justice Owen comes to us with a
distinguished record and with the recommendations of many
respected individuals within her State of Texas. She currently
sits as one of nine Justices on the Texas Supreme Court, which
is the court of last resort for civil cases in that State.
Justice Owen is a graduate of Baylor University and Baylor
Law School, and before joining the Texas Supreme Court in 1995,
she was a partner in the law firm of Andrews and Kurth.
As indicated by the large number of people in this room--in
fact, as indicated by the size of the room itself--this is a
nomination that has received a lot of interest. My office has
received dozens of letters of support and of opposition from
organizations within Texas and from national organizations, as
well, on both sides of the debate, so feelings run very, very
strong. We will, of course, keep order and we do not appreciate
any comment from the audience.
I am keeping an open mind on this nominee, as I do with all
nominees. I first met with her several weeks ago. I found her
to be personable, intelligent, and well spoken. It is clear to
me that Justice Owen knows the law, she is very capable, and
that she would be an excellent advocate for a cause.
But the question this committee must answer for this and
all nominees is whether this individual would make a good
Federal judge, a Federal appellate judge, and that
determination includes questions beyond intelligence and
character. We must also ask about temperament and the ability
to decide cases on the law, not on personal beliefs.
The concerns that have been raised about Justice Owen go to
the heart of these questions. Accusations have been made that
Justice Owen too often stretches or even goes beyond the law as
written by the Texas legislature to meet her personal beliefs
on several core issues, including abortion and consumer rights.
I have read through a great deal of the material about
Justice Owen in preparation for this hearing, including a
number of opinions she has written on a variety of subjects, so
I am very interested to hear from Justice Owen on these issues
today, after which I will carefully review the record and make
what is sure to be a very difficult decision, as we all will
do.
So now, I would like to turn to the ranking member and then
to the chairman of the committee.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Thank you, Madam Chairman. I want to welcome
all nominees today, as well as the Members of the Congress who
have come to testify on their behalf.
I ask that I be able to put statements for Messrs. Timothy
Corrigan and Jose Martinez into the record. I would ask
unanimous consent for that.
Senator Feinstein. Without objection.
Senator Hatch. I would like especially to welcome Justice
Priscilla Owen of Texas, our lone Circuit Court nominee. I
intend today to comment on Justice Owen's qualifications and to
address some of the deceptions, distortions, and demagoguery
orchestrated against her nomination that we have all read in
the national and local papers. I have long looked forward to
this hearing, and I expect she has, as well.
I would like first to comment on the two jingoes that are
being used about her record as if they had substance, namely
that Justice Owen is ``conservative'' and that she is ``out of
the mainstream.'' Of course, this comes from the Washington
interest groups that we have seen year after year, in many
cases, who think that the mainstream thought is more likely to
be found in Paris, France, than in Paris, Texas.
I must admit that it is curious to hear it argued that a
nominee twice elected by the people of the most populous State
in the circuit for which she is now nominated is ``out of the
mainstream.'' Texans will no doubt be entertained by whoever
says that.
Listening to some of the commentary on judges, I sometimes
think that mainstream for them is a Northeastern river of
thought that travels through New Hampshire early and often,
widens in Massachusetts, swells in Vermont, and deposits in New
York City. Well, the mainstream that I know and that most
Americans----
The Chairman. That is impossible to do geographically, but
that is OK.
Senator Hatch. I understand. That was the point.
[Laughter.]
Senator Hatch. The mainstream that I know and that most
Americans relate to runs much broader and further than that.
The other mantra repeated by Justice Owen's detractors is
that she is ``conservative.'' Now, I believe that the use of
political and ideological labels to distinguish judicial
philosophies has become highly misleading and does a misservice
to the public's confidence in the independent judiciary of
which this committee is the steward. I endorse the words of my
friend and former Chairman Senator Biden when he said some
years ago that, ``Judicial confirmation is not about pro-life
or pro-choice, conservative or liberal, it is not about
Democrat or Republican. It is about intellectual and
professional competence to serve as a member of the third co-
equal branch of the government.''
I believe it is our duty to confirm judges who stand by the
Constitution and the law as written, not as they would want to
rewrite them. That was George Washington's first criterion for
the Federal bench and it is mine. I also want common sense
judges who respect American culture. I believe that is what the
American people want, as well.
I believe we do a disservice to the independence of the
judiciary by using partisan or ideological terms in referring
to judges. My reason was well stated by Senator Biden when he
said that, ``It is imperative not to compromise the public
perception that judges and courts are a forum for the fair,
unbiased, and impartial adjudication of disputes.''
We compromise that perception, I believe, when we play
partisan or ideological tricks with the judiciary. Surely, we
can find other ways to raise money for campaigns and otherwise
play at politics without dragging this nation's trust in the
judiciary through the mud, as some of the outside groups
continue to do.
All you have to do to see my point is read two or three of
the fund-raising letters that have become public over the past
couple of weeks that spread mistruths and drag the judiciary
branch into the mud, as many recent political campaigns
increasingly find themselves.
On a lighter note, while on ideology, let me pause to point
out that one of the groups deployed against Justice Owen is the
Communist Party of America, but then, I do not know that they
have come out in favor of any of President Bush's nominees. I
suspect after the fall of the Berlin Wall, they must have a lot
of time on their hands these days.
Today, I wish to address just why a nominee with such a
stellar record, a respected judicial temperament, and as fine
an intellect as Justice Owen has, who graduated third in her
class from Baylor's Law School, a great Baptist institution,
when few women attended law school, let alone in the South, who
obtained the highest score in the Texas Bar examination and who
has twice been elected by the people of Texas to serve on their
Supreme Court, the last time with 83 percent of the votes and
the support of every major newspaper of every political stripe,
I would like to address just why such a nominee could be here
today with as much organized and untruthful opposition from the
usual leftist Washington special interest groups that we see.
I will peel through what is at play for these groups. We
need to expose and repel what is at play for the benefit and
independence of this committee, and I would like to address
also the reasons why I am confident that she will be confirmed
notwithstanding, not least of which is that this committee has
never voted against a Circuit nominee with the American Bar
Association's unanimous rating of ``well qualified,'' the
highest rating they give. Justice Owen has that highest of
ratings.
The first reason for the organized opposition, of course,
is plain. Justice Owen is from Texas, and Washington's well-
paid reputation destroyers could not help but attempt to attack
the widely popular President of the United States at this
particular time in an election year by attacking the judicial
nominee most familiar to him, Justice Owen. Welcome to
Washington.
But as I prepared more deeply for this hearing, the second
reason became apparent to me. In my 26 years on this committee,
I have seen no group of judicial nominees as superb as those
that President Bush has sent to us, and he has sent both
Democrats and Republicans, men and women, Hispanics, African
Americans, and Caucasians.
In reading Justice Owen's decisions, one sees a judge
working hard to get it right, to get at the legislature's
intent, and to apply binding authority and rules of judicial
construction. It is apparent to me that all of the sitting
judges the President has nominated, that of all of them,
Justice Owen is the most outstanding nominee. She is, in my
estimation, the best that every American, every consumer, and
every parent could hope for.
Her opinions, whether majority, concurrences, or dissents,
could be used as a law school textbook that illustrates exactly
how, and not what, an appellate judge should think, how she
should write, and just how she should do the people justice by
effecting their will through the laws adopted by their elected
legislatures. Justice Owen clearly approaches these tasks with
both scholarship and mainstream American common sense. She does
not substitute her views for the legislature's, which is
precisely the type of judge that the Washington groups who
oppose her normally want.
She is precisely the kind of judge that our first two
Presidents, George Washington and John Adams, had in mind when
they agreed that the Justices on the State Supreme Courts would
provide the most learned candidates for the Federal bench.
So in studying her record, the second reason for the
militant and deceptive opposition to Justice Owen became quite
plain to me. In this world turned upside down, simply put, she
is that good.
Another reason for the opposition against Justice Owen is
the most demagogic, the issue of campaign contributions and
campaign finance reform. Some of her critics are even eager to
tie her to the current trouble with Enron. Well, she clearly
has nothing to do with that. Neither Enron nor any other
corporation has donated to her campaigns. In fact, they are
forbidden by Texas law to make campaign contributions in
judicial elections.
Despite the politics, I am certain that Justice Owen is
quite eager to address this issue fully, and being a Texas
woman, I trust she will not embarrass the questioner too
badly--not that there is a need for more questions. The Enron
and campaign contributions questions were amply clarified in a
letter to Chairman Leahy and the committee dated April 5 by
Alberto Gonzales, the White House Counsel. I ask, Madam
Chairman, to place this and other related letters into the
record at this point.
Senator Feinstein. So ordered.
Senator Hatch. And I would place into the record a
retraction from the New York Times saying that they got the
facts wrong on this Enron story. Such retractions do not come
often, although the misstatement of facts by the destroyer
groups do. So I would ask unanimous consent that that go in the
record.
Senator Feinstein. Without objection.
Senator Hatch. I also hope that Justice Owen will get a
chance to address her views on election reform and judicial
reform, of which she is the leading advocate in Texas. She is
also a leader in gender bias reform in the courts and a
reformer on divorce and child support proceedings. I hope she
will have an opportunity to address these matters and about her
acclaimed advocacy to improve legal services and funding for
the poor.
All of these are aspects of her record her detractors would
have us ignore. I do not know about my other colleagues, but I
certainly did not read these positive attributes in those fancy
documents, or should I say booklets, released over the past
several weeks by the People for the American Way and their co-
conspirators in the Washington special interest lobby.
I ask, Madam Chairman, to place in the record letters from
the leaders of the Legal Society and 14 past presidents of the
Texas Bar Association, many of whom are Democrats. I ask
unanimous consent for that, as well.
Senator Feinstein. Without objection.
Senator Hatch. The fourth reason for the opposition to
Justice Owen is the most disturbing to me. For some months now,
a few of my Democrat colleagues have strained to point out when
they believe they are voting for judicial nominees that they
believe to be pro-life. I have disputed this when they have
said it is because the record contains no such information of
personal views from the judges we have confirmed. Each time
they assert it, my staff has scoured the transcript of hearings
and turned up nothing. What does turn up is that each time my
colleagues have asserted this, they have done so only for
nominees who are men.
I am afraid that the main reason Justice Owen is being
opposed is not that personal views, namely on the issue of
abortion, are being falsely ascribed to her--they are--but
rather because she is a woman in public life who is believed to
have personal views that some maintain should be unacceptable
for a woman in public life to have.
Such penalization is a matter of the greatest concern to me
because it represents, in my opinion, a new glass ceiling for
women jurists, and they have come too far to suffer now having
their feet bound up just as they approach the tables of our
high courts after long-struggling careers. I am deeply
concerned that such treatment will have a chilling effect on
women jurists that will keep them from weighing in on exactly
the sorts of cases that most invite their participation and
their perspectives as women.
Ironically, the truth is that the cases that her detractors
point to as proof of apparently unacceptable personal views are
a series of fictions. This is what I mean about exposing the
misstatements of the left-wing activist groups in Washington. I
will illustrate just three of these fictions.
The first sample fiction is the now often-cited comment
attributed to then Texas Supreme Court Justice Alberto
Gonzales, written in a case opinion, that Justice Owen's
dissent signified ``an unconscionable act of judicial
activism.'' Someone should do a story about how often this
little shibboleth has been repeated in the press and in several
websites of the professional smear groups. I would venture that
some of my colleagues have it on the first page of their
briefing memos even now. The problem with it is that it is not
true. Justice Gonzales was not referring to Justice Owen's
dissent, but rather to the dissent of another colleague in the
same case.
The second sample fiction is the smear groups'
misrepresented portrayal of a case involving buffer zones and
abortion clinics. In that case, the majority of the Texas
Supreme Court ruled for Planned Parenthood and affirmed a lower
court's injunction that protected abortion clinics and doctors'
homes and imposed $1.2 million in damages against pro-life
protesters. In only a few instances, the court tightened the
buffer zones against protesters. Justice Owen joined the
majority opinion and was excoriated by dissenting colleagues,
who were admittedly pro-life, by the way.
When describing that decision then, abortion rights leaders
hailed the result as a victory for abortion rights in Texas.
Planned Parenthood's lawyer said the decision ``isn't a home
run, it's a grand slam.'' Of course, that result has not
changed, but the characterization of it has. This is how
Planned Parenthood describes the same case in their fact sheet
on Justice Owen. ``Owen supports eliminating buffer zones
around reproductive health care clinics.'' In fact, her
decision did exactly the opposite, and I think this committee
deserves and should demand a formal apology and full
explanation.
The third and most pervasive sample of fiction concerns
Justice Owen's rulings in a series of Jane Doe cases which
first interpreted Texas's then-new parental involvement law.
The law, which I think is important to emphasize was passed by
the Texas legislature, not Justice Owen, with bipartisan
support, requires that an abortion clinic give notice to just
one parent 48 hours prior to a minor's abortion. Unlike States
with more restrictive laws, such as Massachusetts, Wisconsin,
and North Carolina, consent of the parent is not required in
Texas. A minor may be exempted from giving such notice if they
get court permission.
Since the law went into effect, over 650 notice bypasses
have been requested from the courts. Of these 650 cases, only
ten have had facts so difficult that two lower courts denied a
notice bypass. Only ten have risen to the Texas Supreme Court.
Justice Owen's detractors would have us believe that in these
cases, she would have applied standards of her own choosing.
Ironically, in each and every example they cite, whether
concurring with the majority or dissenting, Justice Owen was
applying not her own standards, but the standards enunciated in
the Roe v. Wade line of decisions of the U.S. Supreme Court,
which she followed and recognized as authority.
For example, detractors take pains to tell us that Justice
Owen would require that to be sufficiently informed to get an
abortion without a parent's knowledge, that the minors show
that they are being counseled on religious considerations. They
appear to think this is nothing more than opposition to
abortion rights. They are so bothered with this religious
language that various documents produced by the abortion
industry lobby italicize the word ``religious.''
But this standard is not Justice Owen's invention but
rather the words of the Supreme Court's pro-choice decision in
Casey. Should she not follow one Supreme Court decision but be
required to follow another? Is that what we want our judges to
do, pick and choose which decisions to follow? That appears to
be the type of activist judge these groups want, and this
committee should resist all such attempts to get that type of a
judge.
The truth is that rather than altering the Texas law,
Justice Owen was trying to effect the legislators' intent. No
better evidence of this is the letter of the pro-choice woman
Texas Senator stating her ``unequivocal'' support of Justice
Owen. Senator Shapiro says of Justice Owen, ``Her opinions
interpreting the Texas parental involvement law serve as prime
example of her judicial restraint.''
I am sorry I am taking a little longer, but I will finish
in just a minute.
I understand why the Washington left-wing groups do not
like that in a judge, but this committee should applaud and
commend such restraint and temperament.
The truth is that rather than being an activist foe of Roe,
Justice Owen repeatedly cites and follows Roe and its progeny
as authority. Compare this to Justice Ruth Bader Ginsburg, who
wrote in 1985 that the Roe v. Wade decision represented
``heavy-handed judicial intervention'' that was ``difficult to
justify.''
Now, in relation to this, I would like to briefly comment
on the mounting offensive of some to change the rules of
judicial confirmation by asking nominees to share personal
views or to ensure that nominees share the personal views of
the Senator on certain cases.
To illustrate my view, I will tell you that many people
have recently called on this committee to question nominees as
to their views on the Pledge of Allegiance case. My full-
throated answer to this is no, as much as I think that that
case was wrongly decided. I also happen to think that the
recent school voucher case is the most important civil rights
decision since Brown, but I am not going to ask people what
they think about that case, either.
Such questions threaten the heart of the independent
judiciary and attempt to accomplish by hidden indirection what
Senators cannot do openly by constitutional amendment. It is an
attempt to make the courts a mere extension of the Congress.
I speak against this practice in the strongest terms, and
in my view, any nominee who answers such questions would not be
fit for judicial office and would not have my vote.
The truth is that there are many who, like Justice
Ginsburg, think that cases like Griswold or Roe were wrongly
decided as a constitutional matter, even if they agree with the
policy result, just as the great liberal Justice Hugo Black did
in his dissent in Griswold. A few weeks ago, we heard testimony
that Chief Justice Warren thought Board of EducationBoard of
Education was his worst ruling as a matter of constitutional
law, but not his least necessary.
Again, I welcome Justice Priscilla Owen. Considering the
opposition mounted so unfairly against you, I have to tell you
that today, you may be the bravest woman in America. I hope
that there are young women watching you right now. You are an
excellent role model for anyone, and especially young women.
Some of Justice Owen's detractors have made much about the
fact that she is not afraid to dissent. Of course, they fail to
mention dissents like her opinion in Hyundai Motor v. Alvarado,
in which Justice Owen's reasoning was later adopted by the U.S.
Supreme Court on the very same difficult issue of law.
They also overlooked her dissent in a repressed memory
sexual abuse case where she took the majority to task with
these words: ``This is reminiscent of the days when the crime
of rape went unpublished unless corroborating evidence was
available. The court's opinion reflects the attitudes reflected
in that era.''
Perhaps, Madam Chairman, they thought that dissent
reflected too well the perspective of a woman to point out to
Senators like all of us up here.
Despite deceptive opposition, I think that Justice Owen
should be confirmed, first, because I believe that colleagues
like many on this committee, and hopefully all of us, will be
fair. I also believe my Democratic colleagues will be led by
the time-tested standards well stated by Senator Biden and look
again to qualifications and judicial temperament, not base
politics. Whether the Biden standard will survive past our time
will be tested in this case. If we fail the test, we will
breach our responsibility as auditors of the Washington special
interest groups and the judiciary's stewards on behalf of all
people and not just some.
I want to thank you, Madam Chairman. I know I took a little
longer than I usually do, but I felt that it needed to be done
in this case and I look forward to the testimonies here today.
Senator Feinstein. Thank you, Senator Hatch.
The Chairman of the Committee, Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Chairman Leahy. Madam Chair, I will not do as my friend
from Utah did and give a long speech that simply delays these
proceedings. I will put my speech in the record.
I also have great respect for the chair of this committee,
the Senator from California, and I know she will hold a fair
hearing, and unlike my friend from Utah, I will make up my mind
after hearing the facts and not decide them before we even have
the hearing.
We will have hearings today on the 79th, 80th, and 81st
judicial nominees since I took over on July 11. Justice Owen is
the 17th Court of Appeals hearing we have had.
I would point out that Justice Owen has been nominated for
the United States Court of Appeals for the Fifth Circuit, to a
seat vacated by William Garwood in January 1997. President
Clinton had nominated Jorge Rangel, a distinguished Hispanic
attorney from Corpus Christi, to fill that vacancy. He had a
unanimous rating of ``well qualified'' by the ABA, something
the Senator from Utah says is very important. But the Senator
from Utah and the Republican-controlled Senate refused to give
him a hearing, and after 15 months, his name was returned. He
was never allowed to have a hearing.
So then President Clinton nominated Enrique Moreno, another
outstanding Hispanic attorney, to fill the same vacancy. This
committee, under Republican chairman, did not allow him to even
have a hearing for the 17 months that his name was pending
here, and then President Bush withdrew his name.
Now, we have Judge Owen, who is the third nominee. I trust
the distinguished Senator from California to hold a fair
hearing, something that the two nominees, the two Hispanic
nominees, two extremely well-qualified Hispanic nominees
nominated by President Clinton, were never allowed to have
before this committee. I commend the Senator from California
and this committee for holding a hearing and not doing as had
been past practice--we have heard a lot about past practice--
did not follow past practice and said, we are having a hearing.
I will make up my mind based on what we hear.
I would hope that other Senators would refrain from the
kind of name-calling we have heard about people who have
expressed their views. I have heard a lot of views expressed on
this both for and against Justice Owen. While I may not have
liked the tenor and even some of the things I was told in those
views, I am one who defends the First Amendment.
Thank you, Madam Chair.
Senator Feinstein. Thank you very much, Mr. Chairman.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Senator Feinstein. We will now turn to the members of----
Senator Schumer. Madam Chair, there are a couple of things
that I would just like to mention here in response to Senator
Hatch. Could I have a minute or two to do that?
Senator Feinstein. Well, we have a very long--I think every
other member probably has something they would like to say.
What we generally do is turn to the members and then hear. If
you would not mind withholding, I think it would be
appreciated.
Senator Schumer. I will defer to you, Madam Chair. I just
thought certain things were on the record that were just so
wrong that they need some refutation.
Senator Feinstein. I will give you ample time to explain
later.
Senator Schumer. Thank you.
Senator Feinstein. We now have three Members of the
Congress. I would like to begin with the senior Senator from
Texas, the Honorable Phil Gramm, and then we will proceed right
down the line. If you could keep your statement to 5 minutes or
so, that would be appreciated.
PRESENTATION OF PRISCILIA OWEN, NOMINEE TO BE CIRCUIT JUDGE FOR
THE FIFTH CIRCUIT BY HON. PHIL GRAMM, A U.S. SENATOR FROM THE
STATE OF TEXAS
Senator Gramm. Madam Chairman, first, thank you very much.
I appreciate having an opportunity to be here.
I am not going to waste your time telling you that
Priscilla Owen is brilliant, that she is a distinguished
student of the law. Everybody knows that. If she were a
simpleton, there would not be all this opposition to her.
I just want to talk about the Priscilla Owen that I know
and that the people of my State know. First of all, normally
when there is an effort to attack somebody, you find one little
thing about them and you blow it out of all proportion. What is
so basically disturbing to me about this case is, there is no
one little thing to blow out of proportion. This attack is
created out of whole cloth.
Priscilla Owen is not a political person. Priscilla Owen,
when she was recruited by people who wanted to have outstanding
jurists, was probably our State's greatest commercial
litigator. She was living in River Oaks, which is the richest
neighborhood in our State. She was extraordinarily successful.
She was totally non-political. When she was approached about
running for the court, she was not sure what primary she had
voted in. The idea that this good woman is some kind of
political activist or kook is as far from the truth as it can
be, as you can get from the truth.
She made an extraordinary decision. She gave up probably
the most successful commercial litigation practice that any
female lawyer in my State had or had ever had, moved out of
River Oaks as a single mom to become a Justice of the Supreme
Court of Texas.
Now, I want to address two areas that have been brought up.
One is Enron. Now, Priscilla is from Houston. Enron was the
largest and most successful company in my State. So is anybody
shocked that people who worked for the largest and most
successful company in Texas, a company domiciled in Houston,
supported the most successful commercial litigator in the State
when she ran for the Texas Supreme Court? What is amazing to me
is that people who worked for Enron contributed only $8,600.
That should have been the beginning of a message that maybe
these were not good people.
[Laughter.]
Senator Gramm. Now, there has been an accusation that
somehow, because employees of the largest and most successful,
at that point, company in my State contributed $8,600, that
somehow this induced her to make a political ruling. Well, the
case was pretty simple. The State law sets out a procedure
whereby inventories are evaluated. The case came before the
Supreme Court.
There was a unanimous decision, and even the lawyer, and I
have got a copy of a letter from Robert Mott, who writes a
letter and says, ``Justice Owen authored the opinion of a
unanimous''--this is the lawyer who represented the other side
of the case--``Justice Owen authored the opinion of a unanimous
court consisting of both Democrats and Republicans. While my
client and I disagree with the decision, we were not
surprised.''
So you read this propaganda being put out, you would get
the idea that this person is bought and sold by Enron and made
a political ruling. You get down to the facts, it is insulting.
Second point, this abortion business, the Texas legislature
wrote a law that basically said you have got to notify a parent
when a minor is having an abortion. Now, to some people, that
is an extremist position. To most Americans, that is a pretty
straightforward position. I would have to say, loving many
members of the legislature as I do, I would still have to say
that the bill was written by people who were trying to be on
three sides of a two-sided issue. It is a very poorly written
law. It imposed very heavy burdens on the court.
But if you go back and look at Priscilla Owen's rulings, if
you listen to her, whether you agree or you do not agree with
her efforts to try to bring logic and reason and precedent to a
very poorly written law, you have got to be basically struck by
the fact that this is a person who tried to follow precedent,
which is what courts are supposed to be about.
Finally, let me say that if you need evidence that this is
an extraordinary woman who has done a good job, who is
basically non-political, let me just give you some. When she
ran for office, she was endorsed by every major newspaper in
the State of Texas. There are a lot of newspapers in the State
of Texas that never endorsed me. Someone who is some kind of
out-of-the-mainstream person is not endorsed by the Austin
American Statesman. In fact, most mainstream people are not
endorsed by the Austin American Statesman.
[Laughter.]
Senator Gramm. The last Democrat who sat on the Texas
Supreme Court is a strong supporter of Priscilla and paid to
come up here to tell people that. That was Raul Gonzalez. The
most respected living former Chief Justice, John Hill, came to
Washington on his own initiative, and he is a Democrat and was
a Democrat candidate for Governor, was Attorney General, is one
of the most loved former office holders in our State, came to
Washington for the specific point of telling people that what
they were saying about Priscilla Owen is simply not true.
So I want to urge my colleagues, I know how these things
work. I have been in this town for 24 years and I have seen a
lot of organized campaigns and I know that this creates
tremendous political pressure on both sides of the aisle. But I
just want to say that if a group of special interests can
convince people that this good woman is some kind of extremist,
then these same groups could convince people that Chuck Schumer
was a conservative or I was a liberal.
There is no foundation to these charges that have been
made, and I want to urge you to get the facts, look at them,
and weigh them from the perspective of not what some advocate
group says, but in simply looking at the facts. If you will do
that, I am confident that Priscilla Owen will be confirmed and
I think it will send a very good signal to America that when
the facts do not comport to the charges, that the Senate goes
with the facts, and I thank you, Madam Chairman.
Senator Feinstein. Thank you very much, Senator Gramm.
I should tell the witnesses that the light is now on. It is
set at 5 minutes. Senator Nelson, you are next in line.
PRESENTATION OF TIMOTHY J. CORRIGAN, NOMINEE TO BE DISTRICT
JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA AND JOSE E. MARTINEZ,
NOMINEE TO BE DISTRICT JUDGE FOR THE SOURTHERN DISTRICT OF
FLORIDA BY HON. BILL NELSON, A U.S. SENATOR FROM THE STATE OF
FLORIDA
Senator Nelson. Madam Chairman, I am from Florida and I am
here for two non-controversial nominations.
[Laughter.]
Senator Feinstein. Yes. I should tell everybody that we
have two additional nominees following Justice Owen.
Chairman Leahy. And I want to thank both Senator Nelson and
Senator Graham of Florida for working out the situation with
the White House so that we could have some non-controversial
nominees up here.
Senator Nelson. Madam Chairman, if you like, I will be
merciful and I will take a total of 30 seconds.
Senator Feinstein. We would appreciate that. Thank you for
your mercy.
Senator Nelson. I am here on behalf of Jose Martinez and
Tim Corrigan. They are non-controversial nominees to the
District Court, one from the Southern District and one from the
Middle District. They reason they are non-controversial, and I
am here on behalf of Bob Graham and myself, and with your
permission will insert both Senator Graham's and my written
statements into the record----
Senator Feinstein. Without objection.
Senator Nelson [continuing]. They are non-controversial
because we have a selection process in Florida called a
Judicial Nominating Commission appointed by distinguished
members of the bar and prominent citizens of the community that
screen the applicants. They go through an extensive formal
written application, extensive interviews. Then the three
nominees come to Senator Graham and me and we interview them
and tell the White House if we have an objection, and then the
White House makes its selection for a District Judge from the
three.
So I am happy to be here on behalf of Senator Graham and
myself to tell you that we enthusiastically support both of
these nominees and they will be very good additions to the
Federal bench.
Thank you, Madam Chair.
Senator Feinstein. Thank you, Senator Nelson.
[The prepared statement of Senator Nelson appears as a
submission for the record.]
Senator Feinstein. Representative Granger?
PRESENTATION OF PRISCILIA OWEN, NOMINEE TO BE CIRCUIT JUDGE FOR
THE FIFTH CIRCUIT BY HON. KAY GRANGER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Representative Granger. Thank you, Madam Chairman. I am
honored to be here today to support the nomination of Priscilla
Owen, a highly qualified nominee from my home State of Texas.
According to the Department of Justice, there are 91
vacancies in the Federal Courts. That is right, 91. Overall,
the President has nominated 113 individuals to serve as Federal
judges, but only 59 of them have been confirmed and 54 nominees
are still pending. Specifically, the President has nominated 32
individuals for the Circuit Courts, but only 11 have been
confirmed. Today, we have a chance to address that problem.
Today, we can move to fill a vacancy that has been
classified as a judicial emergency. The time has come to fill
this seat and fill it with a qualified, sensible nominee like
Priscilla Owen, Priscilla Owen, who received a unanimous rating
of ``well qualified,'' the highest rating possible, from the
American Bar Association.
Justice Owen's academic achievements are remarkable and her
professional experience is exemplary. She graduated with honors
from both Baylor University and Baylor Law School, and
following graduation, she received, as has been noted here, the
highest score for that year on the Texas Bar exam.
Justice Owen practiced commercial litigation for 17 years
before her election to the Texas Supreme Court in 1994. She is
well respected for her service to the highest State court. In
2000, she was endorsed, as has been said, by every major Texas
newspaper for her successful reelection.
In her professional career, Justice Owen has worked to
improve access to legal services to the poor and increased
funding for these programs. She served as a Texas Supreme Court
liaison to Statewide committees that strive to offer legal
services to the poor. Justice Owen also participated in a State
committee that successfully enacted legislation at the State
level to significantly increase funding for indigent legal
services.
Additionally, Justice Owen organized a group known as
Family Law 2000. Family Law 2000 warns parents about the
difficulties children face when parents go through a divorce.
The program also teaches parents how to address those
difficulties and how to make the divorce process as painless as
possible for children.
Madam Chairman, Justice Owen has proven herself to be the
right candidate for this position. She has served the State of
Texas with distinction and I am confident she will serve our
nation well on the Federal court. In short, Justice Owen is an
excellent choice for the Fifth U.S. Circuit Court of Appeals,
and I thank you for the opportunity to speak for her.
Senator Feinstein. Thank you very much, Representative
Granger. The chair will excuse the witnesses and will ask
Justice Owen to come forward.
Justice Owen, before you sit down, if you would raise your
right hand and affirm the oath when I complete its reading. Do
you swear that the testimony you are about to give before the
committee will be the truth, the whole truth, and nothing but
the truth, so help you, God?
Justice Owen. I do.
Senator Feinstein. Please be seated. Thank you very much. I
have put the clock on 10 minutes, but my intention would be to
give you as much time as you require. Generally around here,
people begin by introducing any family members they might wish
to and we would be delighted to meet any of your family or
friends you would care to introduce, and then the time is yours
to say whatever you might like to the committee, and then we
will proceed with rounds of questions and each member will have
10 minutes for their questions.
STATEMENT OF PRISCILLA OWEN, OF TEXAS, NOMINEE TO BE CIRCUIT
JUDGE FOR THE FIFTH CIRCUIT
Justice Owen. Thank you, Madam Chair, Chairman Leahy,
members of the committee. I do want to, before I introduce my
family and some of my special guests today, I do want to take
the opportunity to thank you very much for the hearing today
and for being able to talk to you about some of the issues that
have been raised.
I also want to thank the President, of course, for the
honor of nominating me to the United States Court of Appeals
for the Fifth Circuit, and I certainly want to thank Senator
Gramm and Congresswoman Kay Granger for coming here today and
for their kind words about me and for introducing me.
As you mentioned, Madam Chair, Senator Hutchison will be
here later this morning, but I do want to take this opportunity
to express my thanks to Senator Hutchison for all that she has
done and for her friendship and support throughout this
process.
I also want to thank--he is not here today, but the Counsel
to the President, who is also my former colleague, Alberto
Gonzales, for his support and assistance throughout this
process.
Senator Feinstein. I am going to stop you for a minute.
Hold the mike--this is uni-directional. It has to be directly
in front of you and you have to talk directly into it or else
it blurs.
Justice Owen. Is that better?
Senator Feinstein. If you could put the mike directly in
front of you----
Justice Owen. OK.
Chairperson Feinstein [continuing]. And then speak
directly----
Justice Owen. Is that better?
Senator Feinstein. That is much better.
Justice Owen. I would like to introduce my family and some
folks who are with me today. My sister, Nancy Lacy, is here,
and my pastor, Jeff Black, who is from my church in Austin.
Senator Feinstein. If they would stand, we would like to
acknowledge you.
Justice Owen. And I would certainly be remiss if I did not
introduce the former Chief Justice of the Texas Supreme Court
and former Texas Attorney General John Hill, who is here today.
I want to thank him for his support and all that he has done.
Some of my other friends who are here--and I would hope
that someone would help me with this so I do not miss anyone,
because it is hard for me to see who all is here--Pat Mizell,
former judge from Harris County; my special friend Harriett
Myers, who is a former President of the State Bar of Texas and
who is now at the White House.
Who am I missing? Oh, Judge Levi Bitten from Houston,
Harris County, Texas. I thank you, Levi, for coming. I know
this is short notice and I appreciate it. Who else is--I am
sorry, I am not able to recognize--to introduce everybody that
is here, but thank you all for coming, and everybody who had
been prepared to come last week and I thank you for changing
your plans and getting here this week.
I also wanted to thank, although they could not make it
this week, my former colleagues, Raul Gonzalez and Justice Jack
Hightower. Jack Hightower was also a former Congressman from
Texas, and the 15 past State Bar Presidents, both Democrat and
Republican, who have signed a letter of support and given that
to the committee. And then last week, there were a whole bunch
of folks who came up from Texas to meet with Senators and with
their staffs and I want to thank them for their effort and the
time that they took to do that.
And Madam Chair, Mr. Chairman and members, I also
appreciate the opportunity to make an opening statement today.
I know that that is not usually done, but for the reasons that
have been discussed this morning, I think it is appropriate and
necessary for me to at least give a brief opening statement.
Madam Chair, I truly believe that the picture that some
special interest groups have painted of me is wrong and I very
much want the opportunity to try to set the record straight. I
have been very honored to serve as a judge on the Supreme Court
of Texas and I am extremely humbled that the President has
nominated me to serve on the U.S. Court of Appeals, United
States Court of Appeals for the Fifth Circuit. But I have never
forgotten where I have come--where I came from and my basic
values.
After my father died of polio when I was about 10 months
old, my mother and I went to live with her parents and her
brother on a farm in South Texas, and my family worked very
hard for a living then, as they do now. That was a difficult
time. But my mother eventually remarried to a wonderful man and
we moved to what I considered the big city, which was Waco. If
some of you do not know where that is, it is near Crawford.
[Laughter.]
Justice Owen. But even though we had moved to Waco, I
missed my family in South Texas and I spent my summers growing
up on the farm. And I worked alongside a lot of folks from a
very different background than mine, but I learned through that
that all of us have a whole lot in common. It does not really
matter much where we came from or how we make a living, but it
does matter that we all respect one another.
I was fortunate enough to be able to go to Baylor
University and Baylor Law School and I started practicing law
24 years ago, when there were not very many women in the
profession. The law was very good to me. But an opportunity
came for me to run for the Supreme Court of Texas and I decided
that I should pursue that opportunity. I believe that people
like me who had the experience and who had the academic
credentials and who did not have any kind of ax to grind should
be willing to step out of private practice and serve the public
as judges. So I ran for the Supreme Court of Texas and the
people of Texas elected me in 1994 and reelected me in 2000.
Although I am a judge, I believe it is very important that
I try to serve people in other ways, and one of the first
things I did after I got to the court was to work to increase
legal aid to the poor and to improve their access to the
courts. I also, as you have heard today, helped form a group
called Family Law 2000 that has been concerned about the
adversarial nature of divorces.
I have also served on the board of Texas Hearing and
Service Dogs, which is a charitable organization that provides
and trains service dogs for paraplegics and quadriplegics and
for those who are hearing impaired. As I mentioned, I am a
member of St. Barnabas Episcopal Mission. I teach Sunday School
there to elementary school children and I serve as head of the
altar guild.
But as a judge, I have worked very hard to carry out my
responsibilities to the people of Texas, and I believe that I
have done so. There have been four, I would say, basic
principles that have guided my work as a judge.
The first is, I always remember that the people that come
to my court are real people with real problems and real issues
and that when we decide their cases, we are going to decide
cases that affect a lot of other real people because of the
precedent those cases set. So when I decide a case, I must do
so on the basis of the fair and consistent application of the
law, and my decisions cannot be based and are not based on
whether a party is rich or poor or who their lawyer is. My
decisions are based on the law, whether that is a statute or a
U.S. Supreme Court decision or a prior decision from my court.
Second, when it is a statute that is before me, I must
enforce it as you in the Congress or a State legislature, as
the case may be, has written it, unless it is unconstitutional.
I believe my decisions demonstrate that I do respect the
division between the judicial and the legislative branches of
government. If I am confirmed, I will do my utmost to apply the
statutes you have written as you have written them, not as I
would have written them or others might want me to interpret
them.
Third, I must strictly follow U.S. Supreme Court precedent.
I have taken a solemn oath to do so. I have upheld that oath in
the past, and if confirmed, I will continue to do so as a Fifth
Circuit judge.
Fourth and finally, judges must be independent, both from
public opinion and from the parties and lawyers who appear
before them. As you heard, Texas selects its judges through
partisan elections. That means that judges necessarily preside
over cases in which people appear before them as parties or
lawyers when they have contributed to campaigns. That is a
system that several other States have, but I do not believe it
is the best system. I have long advocated that we change the
way we select judges in Texas. I have advocated that we
essentially follow an election--a retention election after the
judge is initially appointed.
In the meantime, I have led reforms in the judicial
campaign area. When I first ran for the Supreme Court of Texas,
I voluntarily imposed limits on my campaign contributions when
there were not any laws at all imposing any kind of limits. And
when I ran for reelection in 2000, I returned over one-third of
my contributions when I did not receive a major party opponent.
In closing, Madam Chair, Mr. Chairman, members of the
committee, I recognize the tremendous responsibility that
judges have and I have tried the very best I could for the last
7 years to carefully and faithfully execute those
responsibilities. Those who know my record the best have
written to you in my support and expressed their judgment that
I have been a fair and impartial judge on the Supreme Court of
Texas.
I thank you for allowing me to make this statement and I
truly welcome the opportunity to answer all of your questions
today. Thank you very much.
Senator Feinstein. Thank you very much.
I note that Senator Hutchison has just arrived. If she
would take her place, and while she is, I would like to spell
out the early bird order. It is Feinstein, Hatch, Leahy,
DeWine, Kennedy, Sessions, Feingold, McConnell, Schumer,
Brownback, Durbin, and Cantwell.
Senator Hutchison, welcome. Your colleagues have all
testified, but as you told me, you were going to be a little
late and we are delighted to have you here. If you would like
to make a statement, if you could possibly confine it to 5
minutes, we would be appreciative.
PRESENTATION OF PRISCILIA OWEN, NOMINEE TO BE CIRCUIT JUDGE FOR
THE FIFTH CIRCUIT BY HON. KAY BAILEY HUTCHISON, A U.S. SENATOR
FROM THE STATE OF TEXAS
Senator Hutchison. Thank you very much, Senator Feinstein,
and thanks to you and Senator Leahy for allowing me to make
this statement a little late. I got the earliest flight out of
Dallas this morning and it just arrived, so I do thank you for
that.
Madam Chairman, I am here in total and full support of my
friend, Justice Priscilla Owen. She is a 7-year veteran on the
Supreme Court of Texas. I think you know her exemplary career,
starting from when she graduated cum laude from Baylor Law
School in 1977. Justice Owen also made the highest grade on the
State Bar exam that year. I think her academic credentials are
unmatched.
She also has the experience to be a good Circuit Court of
Appeals judge, having been reelected to the Supreme Court with
84 percent of the vote in Texas. She was endorsed by every
major newspaper in Texas during her successful reelection bid.
I think she has the best qualifications of anyone that I
have ever seen come before this committee for a Court of
Appeals appointment. The Dallas Morning News called her record
one of accomplishment and integrity. The Houston Chronicle
wrote that she has the proper balance of judicial experience,
solid legal scholarship, and real world know-how.
But despite the fact that she is a well-respected judge who
has received high praise, her nomination has been targeted by
special interest groups. Justice Owen's views have been
mischaracterized and her opinions distorted. Today, this
committee and Justice Owen have an opportunity to set the
record straight.
One particular area of misinformation concerns Enron. In
Texas, we have Statewide elections for judges. Whether any of
us approve of that system or not, it is the current law in
Texas and, as we all know, a person has to run a campaign and
raise the funds to do that. Priscilla Owen has actually been a
leader in trying to reform the way judges are elected in our
State, having come out solidly against such elections.
Like six other Justices on the nine-member court, Justice
Owen has received Enron contributions in her election bids. She
not only received legitimate contributions from employees and
the employee PAC--she did not take corporate contributions--but
at that time, Enron was one of our State's largest employers
and its employees were active. They were active politically,
they were active civically, and they have been major charitable
contributors in Texas and especially in Houston. So it should
be understandable that they did make political contributions
which were absolutely legitimate. She only took $8,800 in Enron
contributions out of a total of $1.2 million raised for her
bid. Her opponent actually raised $1.5 million.
During her 2000 campaign, Priscilla Owen imposed voluntary
limits on herself, which included taking no more than $5,000
per individual and spouse, no more than $30,000 per law firm,
and over half her total contributions were from non-lawyers. In
fact, after she started the trend of voluntary limits, the
State actually came in and made laws similar to her voluntary
limits that she had led the way to make. After she did not have
a major opponent in 2000, she returned over a third of her
remaining contributions to her contributors.
I want to read the words of our former State Supreme Court
Chief Justice John L. Hill, who is a Democrat and was also
elected Attorney General of Texas as a Democrat, denouncing the
mischaracterization of Priscilla Owen's record by outside
special interest groups: ``Their attacks on Justice Owen, in
particular, are breathtakingly dishonest, ignoring her long-
held commitment to reform and grossly distorting her rulings.
Tellingly, the groups made no effort to assess whether her
decisions are legally sound. I know Texas politics and can
clearly say these assaults on Justice Owen's record are false,
misleading, and deliberate distortions.''
As you know, Justice Owen enjoys bipartisan support and the
ABA Standing Committee on the Federal Judiciary has unanimously
voted Justice Owen ``well qualified.''
So, Madam Chairman, I thank you for allowing me to sit in
full support of my friend, Justice Priscilla Owen, a member of
the Texas Supreme Court with an outstanding judicial record.
Senator Feinstein. Thank you, Senator, for the excellent
statement. We appreciate it very much and you are welcome to
stay or be excused, whatever you wish.
I am going to proceed and try to do two questions in this
round, Justice Owen. The first relates to the Searcy case and
the second has to do with comments that were made.
My understanding of the Searcy case is this. Willie Searcy
was a 14-year-old in a Ford pickup with a seat belt when
another car smashed into the pickup and the seat belt severed.
As a result, he became a quadriplegic. He was on a respirator.
The case went to court. He received a $30 million judgment,
which was then reduced to a $20 million judgment, and the case
came up on appeal.
The young man was in very difficult circumstances. He was
on a respirator. I understand that his family could only pay
for a nurse through 4 a.m. and then there was a quiet hour with
nobody attending him, and then the parents attended him from 5
a.m. in the morning.
Well, he had been in there from the age of 14 to 22 and
while the year and a half dragged by that you were supposed to
be writing that opinion, one morning, the respirator went out
and he died. You wrote an opinion and the opinion you wrote
said that the appeal should not be granted on the basis of
faulty venue, that it was brought in the wrong venue, which had
never been argued in either of the lower courts that handled
the case.
This was a very surprising case for me to read about you
because I thought you, and hope I am right, were a person with
a great deal of compassion, and yet here was someone that had
two courts sustaining a verdict which could have gotten him the
nursing help that he needed to sustain his life. But during the
delay, he died, and there are those in the writings that have
been presented that have said that the delay was unnecessary, a
year and a half delay was unnecessary to write that opinion.
Could you respond to that, and could you also tell us the
average length of time that you take to write an opinion like
this?
Justice Owen. Senator, I appreciate that question because I
do--would like the opportunity to respond, since there has been
so much in the press that is simply wrong about that case.
First of all, we remanded the case to the lower court and
it was 3 years later that Mr. Searcy, unfortunately, passed
away. The court--the case had been in the lower court system
for quite a while before it got to our court and it was over a
year after the accident before the lawsuit was even filed in
the trial court. So he did not pass away while the case was
pending in my court.
What--and I also want to specifically address the
allegation, I guess you would say, not from you, Senator, but
that has been printed in the press, that the issue of venue was
never raised in the lower courts or in my court, which is just
ludicrous, frankly. I would be happy to produce the briefs all
the way up in our court. Venue was argued in the trial court.
It was briefed in the Court of Appeals. The Court of Appeals
decision wrote on venue. Venue was in the briefs prominently in
our court. It was definitely briefed.
And Senator, this is kind of a legal technical explanation,
but I want to try to explain it as best I can. There were no
rendition points in that case. In other words, Ford was not
saying that, ``We win as a matter of law.'' They were saying,
``We want a new trial,'' and under those circumstances, our
court had to address the venue issue. We had no choice, because
there is a statute in Texas that says if the case is filed in
the wrong trial court, then reversal is mandatory. It is not
discretionary, it is mandatory.
And what happened in this case, the Ford vehicle, that is
the pickup, was purchased in Dallas. The Miles, and Mr. Searcy,
his family, lived in Dallas. The accident occurred in Dallas.
Everybody agreed that all the operative facts centered around
Dallas, Texas. Yet the plaintiff's lawyer decided to file in
Rusk County in Texarkana, which is, I think, 180 or 200 miles
northeast of Dallas in a county that had absolutely nothing to
do with the vehicle or the accident. Everybody stipulated that.
The only basis for filing in that other county a long way away
from Dallas was that there was a Ford dealership there, as I am
sure there is a Ford dealership in almost every county in
Texas.
And we looked at existing precedent in Texas, my court did,
and we said, Ford does not own the dealership. Under the
statute, again, applying our prior Supreme Court precedent and
other Courts of Appeals decision, we said venue was in the
wrong county. This was essentially a forum-shopping issue and
we were required by the statute, having concluded that venue
was in error, to remand to the trial court, which we did.
Once it got back to the trial court, the trial court
granted a partial summary judgment against Mr. Searcy and his
family and that went up on interlocutory appeal. The Court of
Appeals considered that and the case came back to our court. We
denied the petition. It went back down to the trial court. And
it was at that point, 3 years after decision remanding it to
the trial court based on the venue ruling, that Mr. Searcy
passed away. And to this date, there has been no, it is my
understanding, trial to adjudicate whether Ford was liable in
the first instance.
Senator Feinstein. Thank you. Since the distinguished
ranking member and my friend raised Justice Gonzales, I thought
I would get his actual statement and read it in some context,
because this relates around the Jane Doe cases, and this is
where I think there has developed a feeling among some that you
are, in a sense, a judicial activist, that you went beyond the
law as the law was written in Texas with respect to
notification in asking for additional things to be presented
that the law itself and its three prongs on notification did
not require.
But let me just quote this. ``To the contrary, every member
of this court agrees that the duty of a judge is to follow the
law as written by the legislature. This case is no different.''
And then it goes on to say, ``Our role as judges requires we
put aside our own personal views of what we might like to see
enacted and instead do our best to discern what the legislature
actually intended. We take the words of the statute as the
surest guide to legislative intent. Once we discern the
legislature's intent, we must put it into effect, even if we
ourselves might have made different policy choices.''
And then it goes on to say, ``The dissenting opinions, of
which you were one in this case'', suggest that the exceptions
to the general rule of notification should be very rare and
require a high standard of proof. I respectfully submit that
these are policy decisions for the legislature and I find
nothing in this statute to directly show that the legislature
intended such a narrow construction. As the court demonstrates,
the legislature certainly could have written Section 33.033(i)
to make it harder to bypass a 366 parent's right to be involved
in decisions affecting their daughters, but it did not.
Likewise, part of the statute's legislative history directly
contradicts the suggestion that the legislature intended
bypasses to be very rare. Thus, to construe the Parental
Notification Act so narrowly as to eliminate bypasses or to
create hurdles that simply are not to be found in the words of
the statute would be an unconscionable act of judicial
activism.''
And, of course, in reading your opinions in these Doe
cases, you did, in fact, insist on certain tests that were not
present in the statute. Could you speak to that, please?
Justice Owen. Well, Senator, let me start in reverse order
with some of the things in your question. First of all, this
was--this was the third in a series, or down the line in a
series of Doe cases. The first Doe case that came to the court
was, of course, Doe I, and in that opinion, I tried my very
best to give effect to legislative intent, and Senator, I
honestly believe that I did not go outside out of what the
legislature intended.
I looked at the words they chose. The legislature said that
a girl who is under 18 who wants to have an abortion without
notifying one of her parents may get a judicial bypass if one
of three prongs are met, and the language that they chose to
put in the statute for the judicial bypass was language that
was almost verbatim, if not verbatim, taken out of a U.S.
Supreme Court opinion. The opinion had said--had blessed a
judicial bypass provision in another, although it was a consent
statute.
And so I looked at the context in which the legislature was
deciding what to write and why and these words were not written
in a vacuum. They had, to me, they had meaning within the
context of all these U.S. Supreme Court cases.
So I looked at the U.S. Supreme Court decisions in this
area, primarily Casey and Akron I--excuse me, the second
decision in City of Akron, and looked at what the U.S. Supreme
Court had said about what it is that States may have an
interest in information being supplied about the abortion
decision. So everything in my Doe I opinion tracked language
from the U.S. Supreme Court's decision specifically, as I said.
Senator Feinstein. I am going to have to stop you mid-
sentence because we have 3 minutes to get to a vote. So I am
going to recess the committee and we will take up just where we
left off.
Justice Owen. Thank you, Madam Chair.
Senator Feinstein. Thank you.
[Recess from 11:18 a.m. to 11:37 a.m.]
Senator Feinstein. Justice Owen, I interrupted you right in
the middle of a response. Let me just quickly, I think, better
state the question.
The issue here is not what some hypothetical State could
impose but what, in fact, the State of Texas did enact into
legislation, and while various Supreme Court cases may have
indicated that requiring additional steps or information might
be permissible, the Texas legislature, as Justice Gonzalez
said, could have written that section, Section 33.033(i), to
make it harder to bypass a patient's [sic] right to be involved
in decisions affecting their daughters. But the point is it did
not.
For instance, in one Jane Doe case, you suggested a minor
must show she understands the impact the procedure will have on
the fetus. I understand you point to the Casey case in support
of this conclusion, but that case never said that such a
requirement is mandatory.
So what in the Texas statute itself would justify such an
expansion of this statute?
Justice Owen. Well, Senator Feinstein, again, the words
that the legislature used on the first prong were mature and
sufficiently well informed, and they, in fact, took the entire
bypass straight out of U.S. Supreme Court cases. If you look at
the backdrop against which this whole statute was enacted, it
seemed to me, and the majority of the court agreed on this, it
is in their opinion, that they were looking at all of the U.S.
Supreme Court precedent on this point, and the words
``sufficiently well informed'' connoted to me, at least, that
they wanted us to look at what the U.S. Supreme Court has said
is relevant to being fully informed.
I think the Texas legislature intended, as explained in
another Supreme Court case, it is H.L. v--and I cannot remember
the second name of it--that they realize that in these
situations, there was not going to be a parent involved, that
neither parent was going to be notified, that an adult standing
in the shoes of the parent was not going to be able to give
mature advice and information to this minor--again, we are
talking about minors--and that the U.S. Supreme Court at one
point in its opinion said the courts and the States are
entitled to presume that parents would give this kind of
information and counseling, but, of course, that is not going
to happen in these situations.
So again, it seemed to me that the Texas legislature, when
they said fully, or, excuse me, sufficiently informed, wanted
us to look at what the U.S. Supreme Court had said States may
encourage women to know about the abortion decision to be
informed, to make an informed choice. And so I looked at, as I
have indicated, primarily Casey and the second decision in City
of Akron to see, what has the U.S. Supreme Court said about the
words ``informed''? When you go to those cases, I lifted
directly out of the cases the issues that the Supreme Court had
identified that they thought it was OK for States to look at in
making this decision.
It seemed to me, again, you are talking about a minor here,
that these legislatures were concerned that mothers and fathers
would want their daughters to make this decision with as much
information as they could have constitutionally, since there
was not going to be an adult involved in the process, only the
courts, and that that is what the legislature intended, within
constitutional bounds.
Senator Feinstein. My time is up.
Senator Hatch?
Senator Hatch. Thank you, Madam Chairman.
Justice Owen, I will ask you more on this later, but let me
make sure that everybody understands some of the answers that
you have just given on the Jane Doe cases.
When you argued in Jane Doe I that for a minor to be
``sufficiently well informed,'' a minor would need to
``demonstrate that she has sought and obtained meaningful
counseling from a qualified source about the emotional and
psychological impact,'' and so on. This was not your personal
standard that you were imposing, but an application of the U.S.
Supreme Court standard, is that not correct?
Justice Owen. Yes, Senator Hatch, that is correct. That
came out of one of the U.S. Supreme Court decisions.
Senator Hatch. Can we presume that when the Justices of the
Supreme Court, the U.S. Supreme Court, established these
standards, that they had before them the best available medical
and psychological information?
Justice Owen. Yes, sir, I agree with that.
Senator Hatch. It just seems to me that your detractors are
seeking, and I am not talking about people up here who have a
right to ask any questions they want, but your detractors on
the outside are seeking to retry Casey and every other Supreme
Court case by attacking you. But what you were doing was
applying Roe v. Wade and its progeny, am I right about that?
Justice Owen. Yes, Senator. I have quoted Roe v. Wade as
modified by Casey and I clearly recognized throughout the
opinion that that is the law of the land and I was trying
faithfully to follow it. And I also pointed out in the course
of, I think it was the Jane Doe I opinion, that if we applied
the rationale of those cases, that would probably mean some of
our family law statutes were unconstitutional in this context.
Senator Hatch. Well, now, much has been made of your
opinion that for a minor to be sufficiently informed for
purposes of the judicial bypass, she must ``exhibit an
awareness that there are issues, including religious ones,
surrounding the abortion decision.'' I have to tell you that
nothing panics your detractors, that is, these liberal special
interest groups, more than a judge suggesting that religion
exists. I think they think that it is crazy talk.
To be clear, though, your language that a minor should
``indicate to the court that she is aware of and has considered
that there are philosophic, social, moral, and religious
arguments that can be brought to bear when considering
abortion'' is nothing but a faithful--maybe I should not use
that term--the mere application of Sandra Day O'Connor's
language in the Casey decision, is that not right?
Justice Owen. Yes, Senator. It was in Casey. I believe it
was also in Akron II, and the specific word ``religious
beliefs'' or ``religion'' was included in H.L. v. Matheson.
Senator Hatch. You did not wake up one morning and suddenly
decide you were going to impose a standard that was all your
own, did you?
Justice Owen. No, Senator. Frankly, when this statute hit
the court, we were all a little caught unawares and I went
straight to the U.S.--I looked at the history of it and went
straight to the U.S. Supreme Court decisions and started to
reading to see what had they said about States' ability to see
that a minor is sufficiently informed in making the choice.
Senator Hatch. It would seem to me that your detractors
would like you to cherry pick among Supreme Court cases or
precedents that you should follow and Supreme Court precedents
you should ignore. Of course, that is typical of how some of
them actually read the Constitution.
Now, let me ask you this. In your decision in Ford Motor
Company v. Miles, is it not true that a bipartisan majority of
the Texas Supreme Court held that lawsuit, which arose out of a
car accident, was filed in the wrong county and, therefore,
remanded for transfer and a new trial in a different county?
Justice Owen. That is correct, Senator.
Senator Hatch. The decision did not eliminate the
plaintiff's ability to sue for the injuries they had suffered.
It simply ordered that the case be reassigned to the
appropriate venue, is that correct?
Justice Owen. That is correct, Senator.
Senator Hatch. OK. I just wanted to make that clear.
Justice Owen, I would like to ask you further about your
decisions concerning the Texas statute that regulates the
ability of minors to obtain abortions without telling their
parents in certain circumstances. First, I want to make sure
that we all understand exactly what that statute does.
As I understand it, the statute codifies the right of
minors to obtain abortions without permission from their
parents, but requires that one of the young woman's parents
simply be notified of their daughter's decision 48 hours before
the procedure is performed, is that correct?
Justice Owen. That is correct, Senator. It is not a consent
statute. It is a notification statute.
Senator Hatch. I see. In addition, the statute provides for
what is called a judicial bypass, which means that a judge can
allow the abortion to go forward without parental notification
provided that the girl ask the trial judge to do so and proves
with testimony or other evidence that she meets one of the
stated reasons for such a bypass, is that correct?
Justice Owen. That is correct.
Senator Hatch. Now, Justice Owen, do you know how many
cases have been filed since that statute went into effect by
girls seeking to obtain abortions without notifying their
parents?
Justice Owen. We do not know the precise number because
they are confidential and some--we do know that there have at
least been 650-some-odd since the statute went into effect in
2000, and the reason we know that is because the statute
provides that the court can appoint counsel or appoint guardian
ad litems for these girls at State expense, and so we know that
that number of reimbursements in that number of cases have been
applied for, but we also know that there are quite a number of
lawyers that do these cases for free on a pro bono basis, so we
do not know the exact number, but we do know at least that many
bypass procedures.
Senator Hatch. And how many of these cases reached the
Texas Supreme Court?
Justice Owen. Ten different minors have come to our court
in 12 different cases. Jane Doe in Jane Doe IV came back after
the remand.
Senator Hatch. I see. And what happened to the rest of the
cases, of the 650?
Justice Owen. Well, the first two cases that came, Jane Doe
and Jane Doe II, a majority of the court, including me,
believed that she, based on the evidence, that she had not met
the statutory standards. But because our court had never
written on either the mature and sufficiently well informed
prong of the statute or the best interest statute, that she did
not--and those were sort of amorphous concepts standing alone--
that she and her lawyer did not really know what standard they
were trying to meet. So in the interest of justice, we remanded
those cases to the trial court for another hearing.
In Jane Doe III, that case was remanded. We do not know
what happened to Jane Doe III. We just do not know because of
the confidentiality. Jane Doe IV, the court affirmed the two
lower courts and denied the bypass.
And let me say, I think it has been said, but let me make
clear that none of these cases ever get to my court unless both
the trial court and the Court of Appeals have denied the
bypass.
Senator Hatch. So I am correct in saying that the Texas
Supreme Court hears such cases only after a trial court has
heard them--that is the court that actually hears the testimony
and the evidence--and that trial court denies the bypass, and
then the Court of Appeals reviews the trial court decision and
agrees that the bypass should be denied?
Justice Owen. Or if they disagree and grant the bypass,
that is the end of it. There are no further appeals. It would
not come to my court.
Senator Hatch. Cases reaching the Texas Supreme Court are
the tough cases because there have only been a few of them that
have----
Justice Owen. Well, yes, Senator, with this caveat, caveat
or however you pronounce it. We have had some cases that came
to the court that--there were five of them, actually--where the
court affirmed the lower court's judgment without opinion, and
it takes under our rules at least six judges to agree to do
that, and if any judge had dissented and noted their dissent
publicly, then we would have reflected that.
I cannot get into the deliberations on our court or
disclose what was at issue in those cases, but I think it is a
fair inference from those circumstances, given the number of
opinions written in all those other cases, that these were not
close cases in those five instances.
Senator Hatch. So these are the more difficult cases where
evidence of maturity, best interests, or abuse happens to be
not very clear, is that right?
Justice Owen. Yes, Senator.
Senator Hatch. And where the precise definition of words
used by the Texas legislature has to be determined?
Justice Owen. That was the--we had never, obviously,
construed the statute before and it needed to be construed by
my court to give guidance to the trial courts and the Courts of
Appeals.
Senator Hatch. Of course, some of the abortion rights
advocacy groups would prefer that you simply always rule in
favor of bypassing parents rather than look at the words of the
statute. I have got to say, I think the method of your
decisions, your principled examination of legislative intent is
exactly the kind of judging that most Americans really want
from their judges and expect.
Now, the judicial bypass law in Texas has been in effect
for a relatively short time, am I right about that?
Justice Owen. Senator, it came into effect in January of
2000.
Senator Hatch. OK, so it has already been a year or so.
Therefore, disputes arising out of that law are cases of first
impression, meaning that the court was deciding the proper
standards that the Texas legislature intended for the first
time, is that right?
Justice Owen. Yes, Senator.
Senator Hatch. Justice Owen, some of the liberal interest
group lobbyists that oppose your nomination have accused you of
lacking sympathy for the girls whose cases made it all the way
up to the Supreme Court for review. Some of those groups want
the public to believe that your decisions reflect an opposition
to abortion itself rather than a thoughtful and principled
approach to applying the law as the legislature intended it or
meant it.
I know that these accusations are false, but I have
examined your record and your opinions, as I have done for a
huge percentage of the judges sitting on the Federal bench
today, and I have concluded that some of these groups have set
out to ruin your reputation and they have simply gotten it
wrong. But they do not always take my word for it,
unfortunately, so let me just ask you.
When you were writing your judicial opinions in the Jane
Doe cases, were you motivated simply by a desire to achieve a
particular public policy result or was your objective to
ascertain and enforce the intent of the Texas legislature?
Justice Owen. No, my personal beliefs do not enter into any
of my decisions. They certainly did not enter into these
decisions. We had a statute in front of us that, again, was
enacted after long debate in the Texas legislature against a
background--backdrop of a series of U.S. Supreme Court
decisions that kind of mapped out some of the parameters of
this area.
Senator Hatch. I would like to pursue this further, but I
just noticed the red light and my time is up.
Senator Feinstein. Before recognizing Senator Leahy, after
Senator Leahy, Senators DeWine, Kennedy, Sessions, it is my
understanding, Senator McConnell, that you wanted to move up in
that order. I will leave it up to you to work out with someone.
Senator DeWine. That will be fine with me.
Senator Feinstein. All right, excellent. Then we will move
Senator McConnell up in place of Senator DeWine and DeWine will
go into McConnell's place.
Senator Leahy?
Chairman Leahy. Thank you, Madam Chair.
Justice Owen, it is good to have you here. I am glad you
were able to have this hearing, and as I noted before, to cut
through the basic rhetoric, when the other party was in charge
of this committee, Jorge Rangel and Enrique Moreno, who had
been nominated by President Clinton for this seat, were never
even allowed to have a hearing. I mention that because as I
hear some of the comments being made on my comment line by the
White House supporters about you, they were probably unaware of
that.
And also, to forestall some of the other comments that the
White House is trying to get out on your behalf, we did notify
the White House of the various cases I was going to ask you
about, about a week ago, is that correct?
Justice Owen. I am sorry?
Chairman Leahy. About a week ago, we gave the White House a
heads up of the type of cases I was going to ask you about, is
that correct?
Justice Owen. I really do not know, Senator Leahy.
Chairman Leahy. Well, then that is--you should talk to
them, because we did.
In F.M. Properties v. City of Austin, let me go into that a
bit because you have developed a reputation for opinions which,
if not every time, most of the time favor big business
interests, and this is a case that does not change that
reputation. A large majority of the Texas Supreme Court in F.M.
Properties v. City of Austin found a section of the Texas Water
Code unconstitutional because it gave too much legislative
power to corporate landowners with large tracts of land.
As a majority of your court saw it, and I think very
convincingly explained their legal reasoning for it, the code
section simply went too far and allowed these large landowners
to regulate themselves, even though that would affect their
financial interest, even though it may adversely affect the
environment of those around them, so the fox is guarding the
hen house. The court said, and I am quoting, that your dissent
in that case was nothing more than inflammatory rhetoric. The
six justices in the majority explained why your legal
objections were mistaken. They said that no matter what the
State legislature had the power to do on its own, it was simply
unconstitutional to give the power of the people to a
landowner.
Now, could you tell me why you thought it was proper for
the legislature to grant these large corporate landowners the
power to regulate themselves, because under this, as I
understand it, it would limit government review. There would be
very little opportunity for citizens to challenge the
regulations. There is clear financial interests in those who
would be regulating themselves. If that is not giving up too
much to a private interest, what would be?
Justice Owen. Senator Leahy, I know that some have tried to
characterize this case as involving a fight between the city of
Austin and big business, but in all honesty, when you get down
and look at it, what this was really a fight about was the
State of Texas versus the city of Austin, and when this case
hit our court, the then-Attorney General of Texas, Dan Morales,
intervened in the case and filed a long, thorough brief in
support of the constitutionality of the State statute.
There had been a longstanding rivalry between the city of
Austin and the State of Texas over Austin's trying to regulate
within its extraterritorial jurisdiction, and the legislature
came back and said, we want State regulations to apply in your
ETJ, which they could not--that is a technical term, but it was
not technically part of the city of Austin, but it was their
ETJ. The State said, look, we gave you the ability to have an
ETJ in the first place and we want State regulations, not city
regulations, to apply in that area.
And this was not an unregulated area. The entire area was
subject to all of the laws of the Texas Natural Resources Code,
all of the other water laws and conservation laws that apply to
every piece of land in the State of Texas, so it was not
unregulated.
Chairman Leahy. Justice Owen, that is not really the way
the majority saw it. They did refer to your opinion as being
inflammatory rhetoric, your dissent. There was very limited
ability for the citizens to question this. Frankly, if you
follow your dissent, one could argue that the problems on Wall
Street right now, there would be no problem in delegating the
power to the corporations and the accountants to regulate
themselves, no matter what effect it might have on ordinary
citizens, no matter the lack of regulation.
Let me ask you about another one, Reade v. Scott Fetzer.
The Texas Supreme Court, by a vote of six to three, held a
vacuum cleaner company liable when one of its dealers raped a
customer after an in-home demonstration required by the
company. Now, a jury of Texans found the company should be held
accountable. The Supreme Court affirmed. The Texas Appellate
Court had agreed first. They said the company had a duty to
exercise reasonable control over their vacuum sales
representatives because in this case it required in-home sales.
In this case, you had a person who had enough in his record to
raise warning flags to the company.
But you said this was wrong, if I understand the dissent
that you joined, that it is a wrong view of corporate
responsibility because it would impose liability on all in-home
vendors, as if the outcome might provide too much justice and
compensation of future victims, even though this case was a
pretty blatant one. Do you think that is a fair basis to shield
corporations from the actions of their agents?
Justice Owen. Senator Leahy----
Chairman Leahy. It seems to be going against basic hornbook
tort law.
Justice Owen. I was trying to follow basic hornbook tort
law and I think this case was very sympathetic. There were
terrible facts in the sense that this woman was raped in her
home. But basic hornbook law is that when there are independent
contractors involved, that you do not have respondeat superior
liability, and here, we had not just one independent contractor
but we had two layers of independent contractors.
The Kirby Vacuum Cleaner Company at the national level
hired or engaged distributors--and this was all stipulated,
that they were independent contractors. This was not my view.
It was the parties agreed to this. There was no issue about it,
that Kirby's distributors were independent contractors, and
that Kirby, in turn, contracted with other independent
contractors to go door-to-door and make the sales. And under
hornbook contract law, you are typically not liable for the
acts of your independent contractors.
Chairman Leahy. But the Texas trial court disagreed with
you. The Texas Appellate Court disagreed with you. The Texas
Supreme Court disagreed with you. I mention this only because I
find so many of these things where you seem to be outside even
the mainstream of what is arguably a very conservative Supreme
Court, the Texas Supreme Court.
I saw this in the City of Garland v. Dallas Morning News on
allowing--you seem to be wanting to write in such a large
exception to any kind of public disclosure that anybody could
hide anything from public disclosure. That is why, and I will
submit a number of questions for the record because I
understand that time is running out, but I will submit a number
of questions on these where you seem to be outside of the
mainstream even of your own court, the other area being the
area of campaign contributions.
I realize that judges are allowed to raise campaign
contributions. You have raised over $1 million for your 1994
and 2000 election campaigns from law firms, lawyers, litigants,
including Enron and Halliburton, many of whom regularly appear
or have interest before your court. It appears that many of the
cases in which your past contributors were parties, you did not
disqualify or recuse yourself. In our State, we would see this
as a major conflict of interest. Apparently, it is not in
Texas.
So I would just ask you this. While you do not have any
duty to disclose contributions, did you make a full disclosure
to the parties of campaign contributions that you received
related to those who may have interest in the case?
Justice Owen. Senator Leahy, all of my contributions are a
matter of public record. For the 2000 election, they are all
available on the Internet. Anybody--I had 3,000 of them, of
individual contributors in my 1994 campaign and they are all--
--
Chairman Leahy. But some of these are fairly significant. I
mean, the Enron ones, for example, were significant, and yet
you, shortly after receiving them, were hearing a case. In
1994, you got 21 percent of your total campaign funds from non-
law firm businesses, including individuals and Political Action
Committees of Enron, Halliburton, Shell, and Kinetic.
My question is, whether required or not, did you ever have
a case, one where you recused yourself because of campaign
contributions, first. Did you?
Justice Owen. No.
Chairman Leahy. Did you ever have a case where you noted,
aside from whatever might be on a website, that you noted to
the parties involved that you had had significant contributions
from one of the parties?
Justice Owen. Well, Senator, again, they are a matter of
public record, and everybody----
Chairman Leahy. I know, but that is an easy----
Justice Owen. And no one is ever asking----
Chairman Leahy. I am not trying to do a trick question,
Justice Owen. It is a simple yes or no. Did you ever have a
case where you went out of your way to make such a disclosure
to the parties? And I would note that you are not required to.
I am just asking, did you ever?
Justice Owen. No, Senator. No one has ever asked me to
recuse because of campaign contributions.
Chairman Leahy. No, did you ever--no. That is not my
question. I posit this by saying, in fairness to you, you are
not required to do this, but did you ever have a case where you
had had significant contributions from one of the parties
involved where you noted that fact to the litigants when they
were before you?
Justice Owen. No, Senator, I did not.
Chairman Leahy. Thank you. Thank you, Madam Chair.
Senator Feinstein. Thank you----
Justice Owen. Mr. Leahy----
Senator Hatch. Could the witness answer some of the other
questions that Senator Leahy raised? He cut her off----
Chairman Leahy. I wonder, Madam Chair, I tried to--I do not
think I cut her off, but I----
Senator Hatch. I felt like----
Chairman Leahy.--I will leave that to the chair to
determine. I will have a number of questions for the record.
Senator Hatch. If she would like to say more, I would like
her to have the opportunity.
Senator Feinstein. Let me just ask, do you have anything
else you would like to say on that----
Justice Owen. I would like to make--there was a lot in
there, but there are two points I would like to make quickly.
Senator Feinstein. Please.
Justice Owen. It is particularly about the comment that I
am out of the mainstream on my own court. We have had 890-
something decisions, or close to 900 that I have participated
in since I have been on the court and I have been in the
dissent apparently--I have not counted it myself, but according
to some of my opposition, 86 times, which means I have been in
the dissent on my court less than 10 percent of the time.
Chairman Leahy. A lot of those cases, though, were
unanimous, were they not, and there were no significant
dissents?
Senator Hatch. So what?
Justice Owen. I do not believe so, Senator Leahy.
Chairman Leahy. OK.
Justice Owen. We split up quite frequently on my court.
The second point I want--well, I can deal with F.M.
Properties, I guess, in detail, but they were subject to a lot
of regulation by the State, just like every landowner in the
State of Texas, and so I would like the opportunity at some
point to fully address all of that, if not today in the
hearing, certainly in writing.
Chairman Leahy. Please understand that on the time, you
have the opportunity, and I am sure that Senator Feinstein
would agree with this, you have an opportunity to expand on any
of your answers, and nobody wants to cut you off. If you have
an area where you feel you did not have an opportunity to fully
answer, of course you can add that for the record, and I will
be submitting other questions. And, of course, if you feel that
they are not clear and you need more information, we will do
that, too.
Justice Owen. I appreciate that.
Chairman Leahy. Nobody is trying--as I said at the
beginning, unlike Senator Hatch, I try to make up my mind after
the hearing, not before.
Justice Owen. I appreciate that, Senator Leahy.
Senator Hatch. I have noticed that.
Senator Feinstein. Now, now, gentlemen. Now, now.
The next questioner is Senator McConnell, and directly
finishing with his time, we will recess until 2:15. Senator
McConnell?
Senator McConnell. Justice Owen, I gather from your
testimony and that of others that you share my view that judges
ought not to be elected.
Justice Owen. Yes, Senator McConnell. From the very first
time that I--since I have been on the court, since the 1995
legislature upwards, I have advocated that we allow the people
of Texas to amend the State Constitution, which is what it
would take in Texas to change the way we pick judges, and allow
them to choose to go to a system that is essentially an
appointment system whereby the judges would then stand for
retention in a totally nonpartisan manner.
Senator McConnell. You probably noticed the U.S. Supreme
Court decision a few weeks ago on the issue of whether or not
States are permitted to have, in effect, gag rules on judges if
they do elect them. The Supreme Court held that--I got the
impression from reading Justice Scalia's opinion that he, too,
was unenthusiastic about electing judges, but he said if you
are going to elect them, you cannot say they cannot say
anything. I was reminded, we have a similar rule in Kentucky,
and I have noticed over the years judges showing up at events,
standing up, introducing themselves, smiling sweetly, and
sitting down because they are essentially not allowed to say
anything.
I raise this because it is, of course, permissible to elect
judges, and Texas has chosen to do that, and while that is
maybe not how I would do it, the people of Texas did not
consult me on that. This issue about your contributions, I find
fascinating how one could run for office, unless taxpayers
provide funding for an election, how one could run for office
without speaking, and having the funds available to speak to a
large audience like you have in Texas is beyond me.
You were successful in raising funds in order to carry your
message to the people of Texas and now you are being, I gather,
criticized for raising perfectly legal contributions to engage
in perfectly permissible campaigns in order to hold the office
that you have now.
You certainly received de minimis contributions from Enron,
smaller amounts than at least one member of this committee, and
there is no evidence whatsoever that Enron is given any
favorable treatment in any of the cases that it might have had
before you. All evidence indicates that you have acted
ethically and ruled correctly with respect to any matters
involving Enron. You never received any contributions from the
company or from Enron-affiliated corporations, and while you
received some contributions from Enron employees, as I read it,
it is less than 1 percent of the total amount of funds you
raised.
The one opinion that I gather is frequently referred to
relating to Enron that you wrote was unanimous and bipartisan
and relied on two on-point Supreme Court decisions. So the
notion that you somehow were tainted by any of these Enron
employee contributions is utterly without any basis.
The committee has received a letter from two Democratic
Justices on the Texas Supreme Court, Raul Gonzalez and Rose
Specter, who joined in that unanimous decision and who
confirmed that there was nothing extraordinary, let alone
improper, about it, and if no one else has put that letter in
the record to date, I would like to ask that that letter be put
in the record.
Others have referred to the lawyer who lost that case and
the letter he sent saying that he was disturbed by suggestions
that your decision in the case was influenced by campaign
contributions from Enron employees. The lawyer said, ``I
personally believe that such suggestions are nonsense.'' This
was the guy who lost.
You could have taken a much more expansive view of what the
contribution system allowed in Texas, but I hold up your pledge
you made to the people of Texas when you ran in 1994, that you
did not have to make, with regard to the parameters that you
were going to superimpose over your contributions during that
campaign. You unilaterally decided to accept no more than
$5,000 from a PAC, a political party, any other entity, or an
individual together with his or her spouse and independent
family members. You did not have to do that, did you?
Justice Owen. That is correct, Senator. At that time, there
were no laws at all in Texas limiting judicial campaign
contributions.
Senator McConnell. And you pledged to have no more than
half my contributors be lawyers, and in a Statewide race,
accept no more than 60 percent of your total contributions from
lawyers. You did not have to do that, did you?
Justice Owen. I met all of the--I met my pledge.
Senator McConnell. Yes, but you did not have to do that.
Justice Owen. I did not have to do that.
Senator McConnell. This was something you chose to do
because you were troubled by having to raise funds in order to
run for a judicial race, but, of course, if you did not, nobody
would have known who the heck you were.
Justice Owen. That is correct, Senator.
Senator McConnell. Third, you said you would allow no PAC
or political party to spend more than $5,000 pro-rated to aid
my campaign. You did not have to do that, did you?
Justice Owen. No, sir, I did not.
Senator McConnell. You, fourth, said you would accept no
more than $25,000 from a law firm and all its employees and
members, their spouses and dependent family members. You did
not have to do that, did you?
Justice Owen. No, Senator.
Senator McConnell. Fifth, you said you would accept no more
than 15 percent of your total contributions from non-lawyer
PACs. You did not have to do that, did you?
Justice Owen. No, Senator.
Senator McConnell. Sixth, you said you would use no funds
raised for any non-judicial office. You did not have to do
that, did you?
Justice Owen. No, Senator.
Senator McConnell. Seventh, you said you would spend or
loan no more than $10,000 of my money on my campaign. You did
not have to do that, did you?
Justice Owen. No, sir.
Senator McConnell. Eight, you said you would spend no more
than $2 million. You did not have to do that, did you?
Justice Owen. No, sir.
Senator McConnell. And ninth, you said you would make a
good-faith effort to report the occupation and employer of each
person who contributes more than $50. Did you have to do that?
Justice Owen. I was not required by law to do it, no.
Senator McConnell. All right. So you were somewhat troubled
by the fact that you had to run for office like a regular
candidate here and you were, on your own, trying to impose some
standards in order to diminish the appearance, at least, of
undue influence on the part of these contributors to your
campaign, is that correct?
Justice Owen. Well, let me--let me do say that when you say
I was on my own, Senator, one of my colleagues who was also
running at the same time also took the same pledge, and Chief
Justice Phillips had not done exactly that, but he had imposed
limits when he had run prior to that. So I was certainly not
the only one that had ever done it, but there were not many of
us that had.
Senator McConnell. That is nice of you to say that. The
others obviously were troubled by the process in some ways, as
well, and as several of the people who testified on your behalf
pointed out, you have actually been a leader in trying to nudge
Texas in the direction of adopting a different system, have you
not?
Justice Owen. I have.
Senator McConnell. Frankly, I think you ought to be sainted
for your exemplary conduct in running for this office. Some
people are insisting on painting you as some kind of Ma Barker
here of depression-era gangland fame and it is utterly absurd.
So just to explore how much attention you may have paid to
these contributors, can you name for me your top five largest
contributors?
Justice Owen. I cannot. I can name the top one because it
was my former law firm and the employees, including the mail
room people, contributed and they exceeded the cap and I gave a
bunch of their money back. But I know because of that that they
were my largest contributor, but other than that, I do not
know.
Senator McConnell. You cannot remember any of the rest of
them, right?
Justice Owen. I can remember some--certainly, I can
remember some of the law firms that contributed because they
are people I practiced law with for 17 years. But I do not know
where they fell in terms of were they 100th or tenth or--I do
not remember.
Senator McConnell. And so the suggestion is made that you
should have somehow notified parties arguing cases before you
of the fact that you had received contributions when, in fact,
that is not required by Texas law and the contributions would
be available in publicly disclosed form to anybody who was
curious enough to ask, and certainly including the lawyers who
were appearing before you, correct?
Justice Owen. That is correct.
Senator McConnell. I think these suggestions that you have
somehow engaged in rulings that favor your donors is absolutely
absurd on its face, and I commend you for really traversing the
waters here of elected politics for a judicial position in a
very ethical manner.
As I said, at the risk of being repetitious, I do not think
judges ought to be elected, but if we are going to elect them,
they certainly ought to be free to speak, and the Supreme Court
has made it clear they are free to speak. The Supreme Court
also made it clear over 25 years ago that in order to speak,
you have to reach the audience, and the only way you are going
to reach the audience is to raise funds to reach the audience,
particularly in an enormous State like yours with a population
currently of what?
Justice Owen. I do not know----
Senator McConnell. Over 20 million.
Justice Owen. Five million people, I think close to five
million people voted in my 1994 race.
Senator McConnell. Yes, over 20 million people in Texas.
You managed to do that in an extraordinarily thoughtful and
ethical manner, for which you ought to be commended, not
condemned, and I think the suggestion that you have in any way
been tainted by these contributions is completely and totally
baseless--completely and totally baseless. It just troubles me
greatly that you have even been subjected to this criticism
because there is essentially nothing that I can find in the
record that justifies it.
Senator Feinstein. Senator, your time is up.
Senator McConnell. Madam Chairman, I think we are about to
the end of our time here anyway and I will save the balance of
my observations for another round.
Senator Feinstein. All right. Senator Hatch, you had a
question?
Senator Hatch. Yes. Madam Chair, if I could, I feel
compelled to respond to the questions raised earlier about the
nominations of Judge Rangel and Enrique Moreno, because these
nominations were made when I was chairman of this committee and
I understand those remarks as some attack on my record of
fairness.
Jorge Rangel voluntarily withdrew his nomination citing
frustration with the pace of the confirmation process. Now, it
is interesting to note that his nomination was pending for
fewer in-session days than Justice Owen's. Mr. Rangel quit
after waiting 192 days of Senate business, while Justice Owen
is here after 212 Senate business days.
When Mr. Rangel quit, President Clinton decided not to
allow the Texas Senators' Federal Judiciary Advisory Group to
review and recommend potential candidates. Instead, President
Clinton nominated Enrique Moreno. This put the Advisory Group
in the unprecedented position of interviewing someone who had
already been nominated to determine his qualifications, and
when the Advisory Group voted, two-thirds of the voting members
opposed the nomination. Now, anyone acquainted with the history
of Senate consultation on nominations would fully understand
that bypassing the home State Senators is not an effective
strategy for confirmation.
In contrast, Justice Owen enjoys the full and strong
support of both of her home State Senators and, of course, many
others in a bipartisan way, as well.
So I just wanted to set the record straight because I did
not want anybody walking out of here thinking that there was a
lack of fairness. Thanks, Madam Chairman, for letting me make
that statement.
Senator Feinstein. You are welcome.
Senator Hatch. Could I also put in the record, Madam
Chairman, a letter to Senator Leahy concerning the Ford Motor
case that was raised earlier----
Senator Feinstein. The Searcy case.
Senator Hatch. Yes, written by Victor E. Schwartz, who, of
course, is one of the true authorities on tort law in this
country and knows what hornbook law really is.
Senator Feinstein. Without objection.
[The letter appears as a submission for the record.]
Senator Feinstein. The hearing will recess until 2:15. I
earlier said 2, but the party conferences generally do not end
until 2:15, so we will make it that. Thank you very much.
[Recess from 12:22 p.m. to 2:15 p.m.]
AFTERNOON SESSION [2:15 p.m.]
Senator Feinstein. The hearing will come to order.
Justice Owen, just a reminder, you are still under oath,
and we will resume the first round of questioning. I would
remind the committee that we will recess for any floor votes
that occur during the remainder of the day, and once again, we
are following the early bird order, and it begins with Senator
Kennedy. After Senator Kennedy, Senators DeWine, Feingold,
Sessions, Schumer, Brownback, Durbin, Cantwell, and Edwards, is
what I have so far.
Senator Kennedy?
Senator Kennedy. Thank you very much, Senator Feinsten.
Welcome, Judge Owen.
Justice Owen. Thank you.
Senator Kennedy. I apologize for not being here earlier. I
was here in the very beginning of the hearing. We are, as you
have heard, considering the prescription drug issue, and as the
floor manager of that, I needed to be on the floor. I am going
to ask questions and then, with the permission of the Chair,
submit some follow-on questions. But I would like to cover, if
I could in the time that I do have, two areas.
As I look at your cases, I see that you have a pattern of
siding against the consumer or the victim of personal injury in
favor of business and insurance companies, and I am struck by
the fact that when the court does rule in favor of consumers or
victims of personal injury, you are frequently in dissent. In a
few instances, you have gone along with the majority of the
case and ruled in favor of injured individuals. But looking at
the information over the last 3 years, you have dissented
almost half the time that a consumer wins, and you have never
dissented in a case in which the consumer loses.
Do you disagree that you are among the most likely on the
Texas Supreme Court to dissent from favoring--or cases favoring
a consumer or injured plaintiff?
Justice Owen. No, Senator, I don't. I judge each case on
its merits. I would like to address one thing you said. One
case that comes to mind where I was in the dissent in favor of
the plaintiff was Saenz v. Fidelity Guarantee, or I am not sure
what comes after ``Fidelity,'' but it was a workers'
compensation case. And the woman entered into a settlement
agreement of her workers' compensation claim, and she
ultimately claimed that she was fraudulently induced into it
and claimed damages for bad faith. And I agreed with the
majority of the court that the bad faith claim couldn't stand,
but I dissented because she should have been entitled to
rescind that settlement agreement and go back and assert,
reassert her original workers' compensation claim. And that is
one that comes to mind. I could go back and----
Senator Kennedy. Let's take the example where the majority
found--over the objections of the majority, have you ever
dissented over the objections of the majority and found for a
consumer or plaintiff? Do you have any recollection of any
cases?
Justice Owen. Well, that would be one of them, the Saenz v.
Fidelity.
Senator Kennedy. That wasn't a majority case.
Justice Owen. I was in the dissent in that case. Are you
asking me if I've been in the majority for consumers?
Senator Kennedy. Any time that--can you point to a case in
which you stood up for a consumer or individual plaintiff over
the objections of the majority?
Justice Owen. Well, there----
Senator Kennedy. That is, a case in which the consumer lost
and you dissented.
Justice Owen. Well, I think the Saenz case that I just
described is one of them. I think there are probably others.
Again, there are 900 of them, and I don't remember them all.
But I could go look.
Senator Kennedy. Well, if you could be good enough to
provide some of those.
Justice Owen. I certainly voted--there are a number of
opinions where I have--obviously the consumer has recovered,
and I joined those opinions.
Senator Kennedy. In the past 2 years, the Texas Supreme
Court has ruled on cases brought under the Texas Parental
Notification Act and the law passed by the State legislature in
2000 to permit the young women to have an abortion without
notifying her parents if she proves by a preponderance of the
evidence that she is mature and sufficiently well informed to
make the decision or if notification would not be in her best
interest or if notification would lead to physical, sexual, or
emotional abuse.
Many, if not most, would describe members of the Texas
Supreme Court as conservatives, and as cases have come before
the court, it is clear that its members have struggled with the
task of restraining their personal beliefs about abortion and
parental notification to ensure that they adhere to the letter
of the law. In fact, former Texas Supreme Court member, current
White House counsel Alberto Gonzales wrote, ``I cannot rewrite
the statute to make parental rights absolute or virtually
absolute, particularly when as here the legislature has elected
not to do so. While the ramifications of such a law and the
results of the court's decision here may be personally
troubling to me as a parent, it is my obligation as a judge to
impartially apply the laws of the State without imposing my
moral view on the decisions of the legislature.'' That is all
his quote.
Now, Justice Owen, a majority of the court have applied the
plain language of the parental notification statute to the
relevant cases, and they have refrained from legislating from
the bench and placing new hurdles before young women who are
already required to meet the stringent standards required by
the statute. On the other hand, you have repeatedly tried to
impose new standards, standards not found in the statute, on
the young women whose cases come before you. For example, you
would require young women to meet an unusually high standard to
prove the ``direct, clear, and positive'' proof of abuse
instead of showing that the notification may lead to abuse.
Your standard is so high that four of your colleagues wrote,
``Abuse is abuse. It is neither to be trifled with, nor its
severity to be second-guessed.''
Similarly, you would require a minor to exhibit an
awareness of religious issues. In no place does the statute
require such a showing.
So, Justice Owen, you seem to be making not interpreting
the law, and, in fact, many might call your actions on the
court activist. Can you tell the committee why, if you believe
that your views reflect the plain language of the statute, you
have been unable to persuade a majority of your colleagues to
interpret the statute such that it includes the additional
hurdles that you have grafted onto the parental notification
law?
Justice Owen. Senator, obviously my court disagreed. We
divided up initially on these cases. Let me go back and address
the clear, direct, positive. That was not the standard that--
the statute says ``abuse may occur,'' and I looked for a
definition of emotional abuse in another piece of the same
family code. And I didn't say that you would have to exhibit--
you would actually have to have that. I said that's the
definition of abuse if it may lead to that. That's all I was
saying there.
The clear, direct evidence piece comes into--that's our
standard of review as an appellate court, that--not in the
trial court, not in the trial court. The trial court, the
burden of proof is preponderance of the evidence, and if
there's some evidence to support what the trial court did,
that's that. But on appeal, if the trial court denies the minor
the bypass and there--even if there's no evidence to support
that denial, she still must, under established law that the
majority agrees with, she must still establish by clear, direct
evidence that's unequivocal as a matter of law that she's
entitled to that bypass. And the majority agrees with that.
It's in our case law. That's just the standard of review if
she--for her to establish as a matter of law she's entitled to
it on appeal. That's not the standard that would be applied in
the trial court.
Senator Kennedy. Well, are you saying that the four
Justices didn't have a different position than you had on this
particular case?
Justice Owen. I'm saying there are two different inquiries.
In Doe 1, I differed with the majority. I said that there were
other factors that ought to be considered in deciding whether a
minor is sufficiently informed. And once Doe was over, that was
the standard that I applied in every case thereafter.
A separate issue that we don't disagree on----
Senator Kennedy. These are other factors in the law? You
were looking at the law and you found that there were other
aspects of the law that you noticed that the other judges did
not notice?
Justice Owen. I looked again at everything that the U.S.
Supreme Court had said that it's OK for States to include in
ensuring that a minor is sufficiently well informed to make
this decision without the knowledge of either of her parents.
They're factors that appear in at least three Supreme Court
cases that I thought the legislature intended to reference when
they used the words ``sufficiently informed and mature.'' And
so I was looking again at what the U.S. Supreme Court had said
in this whole area about being informed and being mature. The
court did not agree with me, but after Doe 1, I applied the
court's standards that they've pronounced. And then this clear,
direct evidence is not--it's not tied to the statute. That's an
appellate standard that the majority agrees with. That's just--
she's not entitled to a bypass in our court unless she
established by--well, in the record, the evidence established
by clear, direct, positive testimony, free from doubt, as a
matter of law she had met the standard.
Senator Kennedy. Well, if you had that, you'd have the same
ruling today as you had at that particular time? You still read
that the way you did at that particular time?
Justice Owen. No, Senator, I apply the--after Doe 1 and all
the other Doe cases that have come up involving mature and
sufficiently well informed, I apply the same--I only looked at
the same factors that the court--the big controversy the second
time Doe came up was whether there was any evidence at all to
support what the trial court did. And I said it was a close
case. But I said the trial court was actually there on the
ground. He saw--he or she saw the minor testify, judged her
credibility, and I think maturity is something that's
particularly hard to do from a cold record. And I said there's
some evidence, even though it's close, to support what the
trial court did, and under appellate standards of review, I
felt I was bound to uphold what the trial court did, even
though I might have ruled a different way had I been the trial
court.
Senator Kennedy. Madam Chair, I thank you. My time is up. I
will have a chance to examine this record further, but I am
troubled by this conclusion. Thank you.
Senator Feinstein. Thank you very much, Senator Kennedy.
Senator DeWine?
Senator DeWine. Justice Owen, thank you for being with us.
I want to clarify something to followup on Senator Kennedy's
questioning. You do now follow Roe 1?
Justice Owen. Yes. That's--yes, that's our precedent.
Senator DeWine. That is the law of Texas today.
Justice Owen. It is the law, and that's----
Senator DeWine. And you have followed that ever since Roe 1
was decided; is that correct?
Justice Owen. Yes, Senator.
Senator DeWine. Now, in Roe 1, both the minority and the
majority were trying to decide what guidance to give the trial
court.
Justice Owen. Yes.
Senator DeWine. Isn't that correct?
Justice Owen. Yes. We were trying to----
Senator DeWine. And isn't it correct that the only dispute
was what guidance to give? It wasn't a dispute over whether you
were going to give guidance?
Justice Owen. That's correct.
Senator DeWine. And, in fact, isn't it true that the
majority did give guidance to the lower court?
Justice Owen. They did.
Senator DeWine. And that is the guidance that you follow
today?
Justice Owen. That's correct.
Senator DeWine. There are a number of rules of construction
that courts apply when interpreting a statute. Isn't it true
that one of those rules is that a legislature is presumed to be
aware of U.S. Supreme Court precedent in an area in which it
has passed a statute?
Justice Owen. That's one of the standard presumptions in
statutory construction.
Senator DeWine. Basic rule of construction the courts will
follow.
Justice Owen. Yes.
Senator DeWine. So in the case of the Texas parental
notification statute, the Texas court's presumption would be
that the Texas Legislature was, in fact, aware of Supreme Court
precedent when it crafted its judicial bypass process.
Justice Owen. Yes, Senator, and we all agreed on that. The
majority agreed that that was true.
Senator DeWine. Now, I'm looking at the end of Section IV
in the Texas Supreme Court's majority opinion in the first Jane
Doe case. In Section IV, your court's majority is discussing a
line of U.S. Supreme Court cases on parental bypass, starting
with Belotti. Your court majority concludes, and I quote, ``Our
legislature was obviously aware of this jurisprudence when it
drafted the statute before us.'' So you weren't alone in your
conclusion that the Texas Legislature drafted the parental
notification statute with the Supreme Court cases in mind, were
you?
Justice Owen. No, Senator.
Senator DeWine. The majority had the same opinion.
Justice Owen. They did.
Senator DeWine. Let me really get back to basics in regard
to this issue, and I want to go back to the statute that was
passed by the Texas Legislature in this area, and I will quote
from it. ``When a minor files this application for a bypass''--
in other words, saying ``I do not want either one of my parents
notified,'' and this is, in fact, a minor we are dealing with.
``When a minor files such an application, the court shall
determine''--I am quoting from the statute--``by a
preponderance of the evidence whether, one, the minor is mature
and sufficiently well informed to make the decision to have an
abortion performed without notification to either of her
parents; or, two, notification would not be in the best
interests of the minor; or, three, notification may lead to
physical, sexual, or emotional abuse of the minor.''
The statutes continues: ``If the court makes any of these
determinations''--that is my emphasis, ``any of these
determinations''--``the court shall enter an order authorizing
the minor to consent to the performance of the abortion.''
Now, you, as the Supreme Court, you are not the trier of
fact, are you?
Justice Owen. No, we're not.
Senator DeWine. That is the lower court, the originating
court.
Justice Owen. Yes.
Senator DeWine. And in Texas you have three layers?
Justice Owen. That's correct.
Senator DeWine. So before that case gets to you, any of
these, what, 10 cases, 12 cases? Whatever they were.
Justice Owen. There were 10 girls.
Senator DeWine. About that. Before they got to you, the
trier of fact had already determined that none of these three
items applied, because if any of them would have applied, if
the trier of fact who was watching the witness, who was talking
to the young lady, who was taking all the circumstances into
consideration, if that trier of fact had found any of these
three, that case never would have got to you, would it?
Justice Owen. That's correct.
Senator DeWine. Now, is it my understanding under Texas law
that once a lower court makes that determination, that ends the
case, because----
Justice Owen. That ends the case.
Senator DeWine [continuing]. There is no one to appeal the
case.
Justice Owen. That's correct. There's no one to----
Senator DeWine. The plaintiff has won or the person who's
filing, the young lady who's filing or her lawyer, they've won
the case.
Justice Owen. And the statute specifically says there's no
appeal from a grant of the bypass.
Senator DeWine. So before these cases get to you, the lower
court has found all three--or has found that none of the three
apply. Then an appellate court has gone through and done a
review.
Justice Owen. That would be a three-judge panel.
Senator DeWine. A three-judge panel. That is how it works
in Texas. All right. Now, as all lawyers know and judges know--
and I think many people know--when a case gets to an appellate
court such as your Supreme Court, you are not re-trying that
case.
Justice Owen. No, Senator, we're not.
Senator DeWine. And there are different standards. The
majority came down with one standard. You came down with
another standard of review. Those standards are not very
dissimilar. Those are--what are the basic standards?
Justice Owen. Well, in terms of the factors on mature and--
--
Senator DeWine. What are you looking for to overturn the
case? What do you have to find?
Justice Owen. On the mature and sufficiently well informed
that--there are two things. You first have to conclude that
there was absolutely no evidence to support the trial court's
failure to find, but then you also have to take the second step
and look at the evidence and see if the minor established from
clear, direct, convincing evidence--I may not be quoting
exactly, but it's in the majority opinion--and there's no
factual dispute at all, that before she's entitled to a
bypass----
Senator DeWine. That is the law of Texas today?
Justice Owen. Yes.
Senator DeWine. That, though, in a sense is not totally
dissimilar to what we have in many appellate cases where the
basic principle of law that we have in this country is that we
give deference to the lower court, the trier of fact, whether
it is a jury or whether it is as judge, who has the opportunity
to watch the witness, has the opportunity to judge the demeanor
of the witness on the stand, has the opportunity to take all
the totality of circumstances into account. Isn't that true?
Justice Owen. That's correct.
Senator DeWine. So I think, Madam Chairman, it seems to me
that when we look at and judge these cases, these parental
notification cases, it seems to me that as we see whether or
not these have any bearing on this Justice' qualification to
sit on the Federal bench, it is good for us to be mindful of
the fact that all appellate courts give a great deal of
deference to the lower courts, that all appellate courts
understand that the trial court judge has his job or her job
and they are the ones who are looking at the witnesses. And it
would seem to me that particularly when we are dealing with
such a very delicate case and a case where the understanding of
the young lady involved is so important, and what not just she
has been told but what she truly understands, that the trial
court judge is in a unique position to make that decision. And
I think that we all should consider that as we look at these
cases.
Thank you very much.
Senator Feinstein. Thank you, Senator DeWine.
Senator Feingold, you are next.
Senator Feingold. I thank the Chair. Welcome, Justice Owen.
Justice Owen. Thank you.
Senator Feingold. Justice Owen, the independence of the
Texas Supreme Court has recently been attacked for allowing its
law clerks to accept large bonuses, as much as $45,000, from
law firms that law clerks plan to join after completing their
clerkships. And the potential for conflict of interest here is
very real and serious, I think. The clerk's review and express
opinion on cases brought by or against the firms paying their
bonuses.
I am told this issue provoked an investigation by the
Travis County Attorney into whether the practice violates Texas
criminal law. The Texas Ethics Commission ruled last year that
the bonuses could be in violation of the State's bribery laws.
In response, the Supreme Court issued new guidelines
concerning these so-called clerk perks. I am told that you,
however, defended the clerk perks and dismissed the criticism
as a ``political issue that is being dressed up as good
government issue.'' Why do you believe that this was simply a
political issue and not a genuine issue of ethics, fairness,
and independence of the judiciary?
Justice Owen. Senator, I'm glad you asked that question
because, first of all, my quote, I do think I said it was a
political issue. I don't remember the second part of it. But
let me give you some background, if I may, on the entire clerk
issue.
First of all, the investigation was not of my accord or any
judge on the court. That was an issue between the employers and
the law clerks. The court or the Justices were never under any
kind of scrutiny at all from the criminal law standpoint. But
this is a long-standing practice that I would say many, if not
most, Federal district courts, Federal circuit courts, and I
think even some judges on the U.S. Supreme Court, law firms
around the country typically give so-called clerkship bonuses
to their lawyers who take their first year of practice and
clerk for a court, not just my court but, as I said, Federal
district courts, Federal courts of appeals, U.S. Supreme Court.
And nobody--that was a practice that's been around for a long
time.
Ever since I've been at my court, I mean, everybody--it was
a clearly understood rule and certainly a hard and fast rule in
my chambers that if you had clerked for any law firm, if you
were even thinking about taking a job offer from any law firm,
you were completely recused from all of their cases
permanently, as long as you were an employee of the court. You
didn't get near that file. You didn't work on memos. When the
matters touching that case were brought up in conference, you
have to leave the conference room, so that there's just no
opportunity at all for a law clerk that has any connection or
any potential connection as an employee with the law firm to
come into contact with those files. So----
Senator Feingold. So the clerks have recused themselves in
each of the cases?
Justice Owen. They have, and that's been a rule for years
as far as to my knowledge on the Supreme Court.
Senator Feingold. I appreciate that background. Let me just
return to my original question. Do you believe this is a simply
political issue or it is also a genuine issue of ethics,
fairness, and independence of the judiciary?
Justice Owen. The reason I said it was a political issue is
because it was only my court that was singled out. This
practice--they didn't criticize the Federal courts. They didn't
criticize any of the lower State courts of appeals who do it.
They didn't criticize the criminal court. They criticize the
U.S. Supreme Court. It was just my court that was singled out
by a group who routinely issues press releases accusing my
court of ethical violations.
Senator Feingold. Well, let me ask you more broadly, then,
the broader practice. Is it simply a political question or is
it a question of whether this creates potential problems, a
legitimate question of ethics and fairness?
Justice Owen. I didn't think, because of the way we had
always structured the clerkship program, that it was an ethical
issue. Because it was such a well-settled, long-standing
practice and because these clerks had no access whatsoever, I
didn't think it was an ethical issue. The way it was resolved
is not--again, this is mainly an issue between the employers
and our clerks, not the court. But we did say--put in new rules
so that the clerks would be absolutely clear and wouldn't
inadvertently get in trouble with anyone. We said--the
authorities said that they can take the clerkships over--the
bonus over a period of a year after they leave the court. So it
was--they still get the bonus. It's just a question of timing.
Senator Feingold. I appreciate those answers. Let me turn
to a different question.
I understand that you are a member of a local church in
Austin, Texas, the St. Barnabas Episcopal Church.
Justice Owen. I am.
Senator Feingold. According to Alliance for Justice, in
1998, while you were a sitting Justice, you lobbied then-
Governor George W. Bush in a private meeting with your pastor
for State funds for an evangelical prison ministry program,
Alpha Prison Ministries.
Now, according to Jose Juarez, a law professor at St.
Mary's School of Law In Texas, this conduct is a violation of
Canons 1, 2, 2A, 2B, 4A, 4B, 4C, and 5 of the Texas Code of
Judicial Conduct. Canon 2B states that a judge ``shall not lend
the prestige of a judicial office to advance the private
interest of the judge or others.'' Canon 4C states that a judge
``shall not solicit funds for any educational, religious,
charitable, fraternal, or civic organization.''
Professor Juarez concludes by stating, ``Any Texas judge
should have known that such a meeting would violate the Texas
Code of Judicial Conduct.''
Would you please explain why you held this meeting in
violation of the letter and the spirit of the Texas Code of
Judicial Conduct?
Justice Owen. Well, Senator, I respectfully submit that I
didn't violate any ethical code at all. I facilitated a meeting
between my pastor and then-Governor Bush to ask if--for my
pastor to ask him if he would consider allowing a prison
ministry headed up by my church in a prison. No State funds
were asked for whatsoever. The whole prison ministry didn't
cost the State any money. It was totally voluntary on the
prisoners' part. They didn't get any special perks or any
special treatment if they took part in the prison ministry. It
was a small group of people, as I understand it--I didn't
participate, but as I understand it, who ended up going to the
women's prison in Burnet, Texas, on Friday evenings for a
period of, I think, 6 weeks or so to do this prison ministry.
Again, no funds were involved. It was simply on Friday
evenings, again, as I understand it--Jeff is here. He can give
you the details if necessary. But----
Senator Feingold. So there was no solicitation for funds at
all?
Justice Owen. Absolutely none.
Senator Feingold. And that is why it is your contention
that none of the canons of ethics were violated.
Justice Owen. That, and the fact that although I am a
judge, I am also a friend of then-Governor Bush, and we had
discussed some of these issues or some of our respective
beliefs before, and I had told him about my pastor. And I guess
in my mind it was more friend-to-friend as opposed to judge-to-
Governor. But in either event, even if I had had my judge hat
on, no funding was involved at all. It wasn't a lobbying
effort. It was simply ``Would you consider letting us do this
prison ministry?''
Senator Feingold. I appreciate your answers to my
questions, Justice.
Justice Owen. Thank you.
Senator Feinstein. Thanks, Senator Feingold.
Senator Sessions is not here, Schumer, Brownback--Senator
Durbin is. You are next up.
Senator Durbin. Thank you very much, Madam Chair.
Justice Owen, thank you for joining us. I have followed in
the news reports a suggestion that the Texas Supreme Court has
changed rather dramatically over the last 10 or 15 years. There
have been suggestions that because of active political
campaigns that those Justices now serving on the court, at
least a substantial majority, are certainly more sympathetic to
business interests, to corporate interests, and insurance
company interests than previous courts. In fact, some national
news programs have suggested that it is nothing short of a
statewide, coordinated, long-term campaign for those interests
to make certain that they are well represented on that Texas
Supreme Court.
Have you heard these same press reports?
Justice Owen. Certainly.
Senator Durbin. Do you believe they are true?
Justice Owen. No, Senator, I don't.
Senator Durbin. And so you would say that the court is--how
would you describe the court today?
Justice Owen. I would describe it as I think some of our
colleagues in other States have described it, as a very good
court. A Justice on the Massachusetts court has said when they
start looking at common law issues, in particular, they start
with the Texas Supreme Court because our opinions are well
researched and thoroughly reasoned, and that's where they
start.
Senator Durbin. On the court itself, where would you place
yourself on the spectrum? More conservative than majority or in
the center position or more liberal?
Justice Owen. Senator Durbin, I frankly don't--I don't
think it's very instructive to apply words like
``conservative'' or ``liberal'' in terms of judging. I don't
take a political viewpoint into my chambers or onto the bench
when I judge cases as I am sitting there reading the briefs.
Senator Durbin. Well, let me ask about a few of those cases
to see if I can deduce my own conclusion for that. Let me ask
you just directly: What is your position on abortion?
Justice Owen. My position is that Roe v. Wade has been the
law of the land for many, many years, now as modified by Casey.
And none of my personal beliefs would get in the way of me
applying that law or any other law.
Senator Durbin. And yet if someone were to take a look at
the opinions that you have written on the parental notification
statute of Texas, they would find, would they not, that in the
overwhelming majority of cases you have decided against
allowing a minor to go forward with an abortion procedure under
Texas law?
Justice Owen. Senator Durbin, there are only five girls
that my court has written on, and out of those five cases, I
voted to grant the bypass in one case, and the first time that
they came to the court in the other two, I voted to remand
those cases to the trial court so that Jane Doe 1 and Jane Doe
2 could each get another shot at getting the bypass. And if the
trial court had granted the bypasses the second time, that
would have been the end of it.
The second time Doe 2 came back, I said it was a close
call, but based on the record, I had--I felt like I had to go
with the trial court's call.
In five of the cases, as I think I talked about earlier,
they came up to the court and, without opinion, the court
affirmed the lower courts. As I said, that would take at least
six votes. There were no public dissents. If there had been,
they would have had to--all the judges would have had to have
noted where they lined up. And I think it's a fair assumption,
given the amount of writing that occurred on the other five
cases, that if they had been close cases, we would have written
on them. So we are----
Senator Durbin. Is it not true that you have ruled against
abortion rights in every opinion you have authored and in 13 of
the 14 cases you considered on the court?
Justice Owen. No, sir, that's--I voted in the first two
cases--I didn't say she doesn't get the bypass. I said she gets
another chance to convince the trial court that she should get
it.
Senator Durbin. Do you understand----
Justice Owen. And then I granted the bypass. I voted with
the court with Doe 10 to outright grant the bypass.
Senator Durbin. Do you understand the timeliness of the
decisions that the courts are making in these cases?
Justice Owen. The timeliness?
Senator Durbin. Yes.
Justice Owen. As soon as they come in, we drop everything
and deal with these----
Senator Durbin. And remanding them for another court
review----
Justice Owen. Within 2 days. We told them that you've got 2
business days under the statute to resolve it.
Senator Durbin. In Jane Doe 2, you wrote in your
concurrence, ``The court has omitted any requirement that a
trial court find an abortion to be in the best interest of the
minor.'' The law says that the notification has to be in the
best interest of the minor. Could you tell me where you came up
with the notion that the legislature required that the abortion
be in the best interest of the minor?
Justice Owen. Yes, sir, I can. That's directly out of a
U.S. Supreme Court case that said we construe notification to
mean--I'm sorry, notification best interest to mean that
abortion without notification is in the best interest, and it's
straight out of a majority opinion from the U.S. Supreme Court.
Senator Durbin. I find in each of these cases, though, that
you have tended to expand and embellish on the State
legislative decision in Texas. Now, Senator Gramm, your
sponsor, one of your sponsors today, has said that he thinks
the Texas Legislature was trying to take three sides on a two-
sided issue. That is a statement that is fairly critical of his
legislature. Clearly, they have taken a position, and I take it
from what you have said to us today that these court decisions
where you consistently find problems with the Texas parental
notification statute, you are saying don't reflect any
opposition on your part to a woman's right to choose?
Justice Owen. No, Senator, I don't think they do. And,
again, the exact language that's in the statute, ``best
interest,'' that exact same language was construed by the U.S.
Supreme Court to mean that the abortion without notification
was in the best interest. So I followed what the U.S. Supreme
Court had construed that to mean, and I thought that was a
reasonable construction given that the legislature had taken
the language out of--if not that very case--it may have been
that very case.
Senator Durbin. I would have to say that I have been on
this committee for a few years, and the issue of judicial
activism has arisen when there were Republican Chairs and
Democratic Chairs. And I have come to conclude that it is in
the eye of the beholder that Republicans only want judges who
are actively pursuing their agenda and Democrats only want
judges actively pursuing their agenda. I don't think it is an
objective standard that is being used here. And so the term is
being used back and forth here. What I am looking for really
are some fundamentals in terms of your philosophy. I believe
the President has a right to fill vacancies, but I also believe
that the people of this country and certainly the people in
this circuit that you are aspiring to deserve judges who are
going to be moderate and centrist and try to be reasonable and
balanced in their decisionmaking.
Let me go to a specific case if I can for a moment----
Justice Owen. Senator, before we leave this area, could I
make just one point on this activist--in this whole area of a
woman's right to choose? Two cases have come before my court
that I'd like you to be aware of. One, I believe it was
Sepulveda v. Krishnan. In that case the question was: Can a
mother and a father recover damages for the death of a fetus?
And I think you could see the implications in all of this
debate over that particular issue. And my court had for many
years construed the Texas wrongful death statute and the
survival statute to say, no, you cannot recover for the death
of a fetus.
We were asked to reconsider that construction, and we
pointed out that the vast majority of States now allow recovery
in those circumstances.
But I agreed with the majority that, no, that had been
Texas law, we were not going to change it. You cannot recover
for the death of a fetus. That's the law in Texas----
Senator Durbin. I am sorry to interrupt you, but I have
very little time here, and if you would like to submit
something along that point of view, I will be happy to consider
it.
I want to go to one specific case, though, the Provident
American v. Castaneda case. Do you remember it?
Justice Owen. I do.
Senator Durbin. I have read this and read your decision,
and I often wondered how a court could come down, as you did,
writing the majority opinion here, in a case involving coverage
on a health insurance plan where, frankly, the insurance
company decided to try to find anything it could in its policy
to avoid paying for a critical surgery that was needed by this
family. In fact, you came down and found on the side of the
insurance company and said that there was an exclusion under
their policy.
The dissent that was written in this case by Justice Raul
Gonzalez I think went to great lengths to point out the facts
that you chose to ignore. He said, ``The court sustains''--let
me find this here directly. ``The court ignores important
evidence that supports the judgment, emphasizing evidence and
indulging inferences contrary to the verdict, resolves all
conflicts in the evidence against the verdict for the family
that was denied coverage.'' And he goes on to say, ``I want to
cite the facts the court chooses to ignore in its decision.''
The reason I raise this issue--and Justice Gonzalez was
very forthright in believing that this was a slam dunk for the
insurance company--that they got an opinion from you that he
didn't believe was sustained by the policy or the evidence. In
fact, he said he thought with your opinion you were destroying
the bad-faith tort in the State of Texas.
Going back to my original point, I think it is fairly well
known that the Texas Supreme Court is much more conservative
today than it once was, that it was an all-out effort by major
corporations and by insurance companies to try to build a
majority on that court. And as I read this decision, sometimes
it is hard for me to imagine how someone in good faith can look
at the facts as in this case and basically say to a family,
after they had pre-approval for a surgery, that an insurance
company could come in and say no, we are not going to cover,
and then have a Supreme Court in Texas stand behind him and say
to the family, You are out of luck, they found a little
provision in the policy here; you are not covered.
This troubles me because, frankly, that kind of a finding
reflects a philosophy which does not tell me there is a well-
balanced approach here, and certainly Justice Gonzalez felt the
same way in his dissent. I would invite you to comment.
Justice Owen. Thank you, Senator. I really do appreciate
the opportunity because this case was not about coverage. They
were covered--the only dispute here was bad faith. These people
recovered under their policy. They got their attorney's fees
for breach of contract, and they got either 12 percent or 18
percent penalty under the statute. I can't remember which one
applied at the time. They lost on the coverage question, no
doubt about it. That was not the issue in front of my court.
The issue was whether in addition to their coverage, their full
policy limits plus attorney's fees, plus the penalty, could
they recover extra contractual damages for bad faith. And the
standard there is that the insurance company had absolutely no
reasonable basis whatsoever to deny the coverage.
And the facts in this case were the family had two children
who had been jaundiced all of their lives. They called up an
insurance company and applied for a policy after their uncle
had told them that he had a hereditary blood disease called HS.
The policy had a 30-day waiting period, and they didn't
disclose to the insurance company anything about the hereditary
disease. Three days after, or maybe it was two, after the 30-
day----
Senator Durbin. Three.
Justice Owen. Three days after the 30 days had run, they
took their children to a physician who on the spot diagnosed
this hereditary disease and removed their--I believe it was
their spleen. So the question was: Under those circumstances,
not should the insurance--could they deny coverage, but was
there any reasonable basis for them to delay in paying the
policy limits. And we said under all those circumstances you
can't say that there was no reasonable basis to delay. But they
were covered. That was not the issue.
Senator Durbin. I could tell you that I think we are
carping on a trifle here as to whether they are covered. The
fact was the insurance company approved the surgery, did they
not, before it took place?
Justice Owen. Yes.
Senator Durbin. And the fact is the insurance company then
refused to pay, and you were arguing in your majority opinion
here on behalf of the insurance company that waiting the 3 days
after the 30-day period was not enough, that this family was
deceiving the insurance company, was operating in bad faith,
and I think Justice Gonzalez and Justice Specter make
compelling argument here that the facts don't just come out
that way.
I have represented insurance companies, and I have
represented plaintiffs. You are the answer to an insurance
company's prayer if you would buy this argument. If you would
turn on a company--turn on a family that is facing this kind of
peril and make this kind of interpretation, and that is what
troubles me about what you are asking for, is to be elevated to
a court where you can make significant decisions involving
insurance companies and major corporations, which I am afraid
if you follow the logic as you did in the Provident case would
not be in the best interest of serving the people in the court.
Thank you for being here. Thank you, Madam Chair.
Senator Feinstein. Thank you very much.
I don't see other Senators here at the moment, but I
thought I might just say something. I am deeply concerned
because I have read all the Doe cases, and I have read the
notification law, and the notification law is pretty
straightforward: one, the minor is mature, sufficiently well
informed to make the decision to have an abortion performed
without notification to either of her parents or a managing
conservator or guardian; or the notification would not be in
the best interest of the minor; or notification may lead to
physical, sexual, or emotional abuse of the minor. That is it.
And any one of the three factors has to be present. That is it.
It seems to me on that basis you make a decision, but you
really haven't done that. You have looked in other places, it
seems to me, to find a rationale not to do what the Texas law
called for, invoking a religious implication, invoking concern
about the fetus, invoking, well, the emotional wrongdoing, was
just threatened by the parents, it may not have happened.
It seemed to me that you--and maybe this is what being an
activist means--that you worked to come out where you came out
in your opinion. And that is a very deep concern because if the
Texas Legislature wanted to change ``may'' to ``must,'' they
could have. They could have said, ``Notification must lead to
physical, sexual, or emotional abuse of the minor,'' but they
didn't. They said it ``may,'' which means it either may or may
not. And this I find troubling.
Now, I had some Texas lawyers come to me who are consumer
lawyers, and they said their concern was they didn't believe
they could ever get a fair shot in your courtroom. And that
was--in 10 years of serving on this committee, no one has ever
said that before. And the case that Senator Durbin just raised,
which I was going to mention as well, the fact is that there
was a judgment. The fact is that the family was entitled to
coverage. But your invalidation of the trial verdict completely
threw out their entire award.
And, again, I mean, the law is there for little people.
This is the remedy for little people, not for the--the
Providents of the world certainly have the right to be taken at
face value, but what disturbs me is that in so many places in
these notification cases, in the health benefits cases, in
other consumer-related cases, in the Searcy case, these are
people very much harmed, and their redress was cutoff.
Could you respond to that?
Justice Owen. Yes, Senator, I would like to. You know,
there are a lot of cases that come before our court that I
think tug at all of our heart strings, and that's the hard part
of being a judge sometimes. But, again, I have committed and
have got to apply the law, and there are guiding principles in
contracts, in the bad-faith area, and other areas that have to
dictate what the law says.
Again, in the Castaneda case, let me emphasize, it was not
about their insurance coverage. They won on the coverage issue.
They got all of their policy benefits. They recovered
attorney's fees. There's a statutory penalty in Texas if the
insurance company doesn't timely pay, and I'm assuming that
they recovered that statutory penalty. The issue in my court
was not policy benefits. The issue in my court was do they get
extra contractual benefits for bad faith, which is a common law
tort or sometimes it's brought under a statute, Article 2121.
So it was not a coverage issue. They did get their policy
benefits.
On the parental notification cases, let me make clear that
I have never advocated in my opinion or anywhere else that a
young girl has to have religious beliefs of any type at all.
But, you know, I said at the U.S. Supreme Court has said, these
are weighty decisions and that a minor ought to exhibit some
awareness that there are philosophical and moral and religious
issues out there. And I hasten to add, if she doesn't have
any--it's not an inquiry what they are. Simply that if she has
those beliefs, has she thought about them? Has she considered
them? Has she considered the philosophical and social and moral
arguments, whether she agrees with them or not, just an
awareness that they exist. She doesn't have to adhere to any
particular viewpoint. She doesn't have to explain or justify
her viewpoint or her philosophy or her moral stance or whether
she has religious beliefs. The U.S. Supreme Court has said--and
I try to apply that--that it is simply she needs to exhibit
some awareness as a mature person, an adult, you would hope an
adult would exhibit, that there are at least these arguments
out there on both sides, and that she's aware of both sides,
not that she agrees with it or, again, has to justify any of
this.
And, again, I really do--I did think that given that the
legislature had lifted word for word what ``mature and
sufficiently well informed'' meant, and ``best interest'' and
all of this out of a statute that had been--from another State
that had been approved by the U.S. Supreme Court, that they
were trying to adhere to all of that precedent. And, Senator, I
think it is hard if I were a trial judge and I was told, well,
decide if she's mature, decide if she's sufficiently well
informed, well, without some guidance, I think you're going to
get varying results around the State. What does that mean?
And so I think it was necessary for my court to speak and
give--so that girls in West Texas wouldn't be held to a
different standard that girls in East Texas were. My court
ultimately--I didn't totally agree with the majority on every
aspect, but I did my best to adhere to what I thought the
legislature intended. It was not anti-anything. It was not
activism. Once the court made its decision in Doe, those are
the factors, and I abide by that.
Senator Feinstein. Well, I believe that this completes the
testimony. I am going to adjourn the hearing, and we have two
other--oh, we have more people coming. I would recess for the
vote then, go down and vote, and just ask you to forbear.
Justice Owen. OK.
Senator Feinstein. If you don't mind.
Justice Owen. Not at all, Senator.
Senator Feinstein. So we will take a brief recess. Thanks,
everybody.
[Recess.]
Senator Feinstein. The hearing will reconvene, and next on
the list, Senator Schumer, then Brownback, Cantwell, and
Edwards.
Justice Owen. Madam Chair, before we proceed, can I amend
an answer?
Senator Feinstein. Certainly, go right ahead.
Justice Owen. It was regarding the Provident American v.
Castaneda case. I remembered that it was--the only issue in
front of my court was bad faith, and I had thought--I
incorrectly remembered, I just assumed that they had won on the
contract claim in the trial court and that was not in front of
us. I was right that the contract----
Senator Feinstein. Are you talking about Castaneda now?
Justice Owen. Yes.
Senator Feinstein. All right.
Justice Owen. I was right that the contract claim was not
in front of us. They never pled breach of contract or asked for
any jury findings on breach of contract. They only sued on a
bad-faith denial of the claim. So I was wrong. I was incorrect.
I had not read the case in quite a while. I said that they
recovered their contract damages. They just never pled that.
They were seeking solely a so-called bad-faith claim under the
Texas Deceptive Trade Practices Act and under the insurance
code. They were statutory claims not under the policy, but so-
called extra-contractual claims.
Senator Feinstein. Yes, but they did not get the extra-
contractual claim.
Justice Owen. That's right. They did not get the extra-
contractual----
Senator Feinstein. They did get the surgery paid for?
Justice Owen. Well, that's my--I thought they did, but they
never pled----
Senator Feinstein. They did not?
Justice Owen. No, because they never asked or pled for
policy benefits under the contract.
Senator Feinstein. So then they got nothing?
Justice Owen. They ended--as it ended up, because they
didn't ask or plead in the trial court or ask for the jury to
find breach of contract of the policy, we didn't have that in
front of us, so we couldn't grant that for them. In other
words----
Senator Feinstein. Didn't the trial court grant it?
Justice Owen. No, Senator, they never pled it. They went
solely on non-contractual claims. They never pled in the trial
court or asked the jury to find that the insurance company owed
the policy benefits under the policy. I don't know why that
was, and I had just assumed that the only thing that they had--
I assumed they'd gotten the contract benefits because I knew
the only issue in front of us was bad faith. But as I re-read--
someone handed me the opinion during the break, and they just
didn't ever raise the contract claims in the trial court.
Senator Feinstein. Thank you for clearing that up. I
appreciate it.
Senator Schumer?
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Thank you, Madam Chairwoman, and I very
much appreciate the opportunity to testify, and thank you,
Judge Owen.
Before I get into what I want to ask you, I did want to
make a few points in reference to what Senator Hatch said in
his opening remarks. Unfortunately, he is not here. I tried to
make them while he was here, but--so he knows I am going to
make them. Three points.
First, you know, let's try to keep this debate at a
reasonable level. Senator Hatch keeps saying left-wing pressure
groups, left-wing pressure groups. Don't hear anything about
right-wing pressure groups or moderate pressure groups. There
are a whole bunch of groups that support Judge Owen's
nomination. They are doing their civic duty, but anyone who
opposes it is a left-wing ideological pressure group. Enough of
that. That kind of foolishness should not go on in this
committee room or anywhere else. Let's be fair about it. There
are groups on both sides pushing everybody, and we are all
independent and have to make our own decisions. We may be
influenced by them on one side of the aisle or the other. But
this idea that the only pressure groups are from the left is a
joke.
Second, related, Senator Hatch talked about something that
I agree with, which is, well, we are picking, we are looking
for little personal things about people, and they are going to
put you through the wringer. ``Welcome to Washington,'' he said
to you, Judge. I am aghast. After 8 years of them looking and
turning President Clinton, his family, and everyone who worked
for him inside out about every single issue under the sun, now
all of a sudden it is ``welcome to Washington.'' Again, what is
good--I don't believe in it on either side. But let's have some
semblance of fairness about this. About not nominating women?
What a canard. What kind of argument is that? I mean, I don't
think anybody can--any cursory look at what this committee has
done has stood up to that. We have on the floor voted for 12
women. My guess is that is about as high a percentage in terms
of the gender as the men who were sent to us.
How about not voting for anyone who is pro-life? My guess
is of the 78 judges I voted for, the majority are pro-life in
this session. So let's cut out the games. Let's not try to beat
people up with two-by-fours, with specious arguments. Let's
have a real discussion about what makes a good judge. And we
will have differing views on that, and that is fair, and that
is why we have a Senate.
But I will tell you, I am not going to bamboozled by
arguments like that, and I don't think anybody should be. And I
just wanted the record to show that. I thought that kind of
hyperbole is not fair.
OK. Now, to Judge Owen. Oh, and one other point which I
will answer. I am glad Senator Hatch is here.
Senator Feinstein. You just missed it.
[Laughter.]
Senator Schumer. Yes, sorry.
Senator Hatch. Is he running me down again?
[Laughter.]
Senator Feinstein. He is responding.
Senator Schumer. I am just responding.
Senator Hatch. Oh, that is what we call it now.
[Laughter.]
Senator Feinstein. You are terrible.
Senator Schumer. He is, but he is a nice guy. He is truly a
nice guy.
Senator Hatch. Not nearly as terrible as him.
Senator Schumer. His arguments are not as nice as he is.
In any case, the other point that Senator Hatch made, which
I will address as I address you, Judge Owen, is what kind of
questions are legitimate to ask and not ask to a candidate for
a high, lifetime position. But let me say this to you, Judge
Owen, and then I am going to make some statements and ask some
questions and weave them in together.
Last week, we had the pleasure to meet privately, and when
we talked, I told you I have had, I think since I have come
here, three standards in terms of nominating, choosing, voting
for judges. They are: excellence, legal excellence;
moderation--I don't like judges too far left, too far right;
and diversity. I don't think the bench should be all white
males.
I don't think there is any question about your legal
excellence. You have had a distinguished academic and
professional career, and the ABA, whose ratings review the
nominee's legal excellence, no more, no less, has rated you
well qualified, with good reason. I think anyone who has
listened even to 10 minutes of this hearing today has no doubt
about the excellence in terms of the quality of your legal
knowledge and your intelligence, your articulateness, et
cetera.
On the diversity front, the population of the Fifth
Circuit, the court you have been nominated to, the population
within the body of the Fifth Circuit is the most racially
diverse in the country, even more so than the Fourth Circuit.
And President Clinton, let the record just show, made three
nominations to that circuit, two of whom were Latino--there is
a large Latino population within the Fifth Circuit, mainly in
your home State of Texas. None of them received confirmation
hearings. So one of the reasons we don't have diversity on this
court is that reason. But, obviously, in terms of gender
diversity, you get an A-plus.
The third standard is moderation, and that is really where
I have concerns, and that is where my focus will be.
Now, there is some idea out there that all of a sudden has
sort of taken root, among people of a particular ideology, I
might add, that you can look deep into space and divine the
correct legal interpretation of a statute that we all would
come out in the same exact place, that our ideology has nothing
to do with how we interpret the law. We all know that is bunk.
It is obvious when you look at any court. Judges bring their
experiences, their biases, their ideology to the table when
they decide cases. Whether it happens consciously or
subconsciously, we know it happens. If it didn't, why would
Justices Scalia and Thomas come out exactly--almost the same
way on so many cases, so different than, say, Justice Breyer
and Justice Ginsburg? If ideology made no difference, the
number of times--they are all very smart people. They are all
great lawyers. The number of times that Scalia would agree with
Thomas would be about the same as the number he agreed with
every one of the judges.
Look at the nominees that Presidents Reagan and Bush made
to the court versus the nominees that President Clinton made to
the court. How come they all seem to vote so similarly? It is
because ideology does matter. We all know it. This
administration knows it. How come they haven't sent up a single
so-called liberal judge? If they were just looking for legal
excellence, they would send some judges from the left, some
judges from the center, some judges from the right. The
President said it himself. He said that he wanted to send
judges up in the mold of Scalia and Thomas. I give him credit
for honesty. He is doing that. Whether that is good for the
country or not is the debate at least that I have chosen to
engage in over the last few years that we have been here.
That happens on your--it happened in the Texas Supreme
Court as well. You and Judge Hecht have frequently come down on
the same side on the Texas Supreme Court. It is not accident.
It is not simply that you went to the same law school, read the
same law books. Philosophically, you are in the same place,
similar places.
So this idea that ideology shouldn't matter, that we
shouldn't ask questions about someone's judicial philosophy,
which is what my good friend from Utah said, I think is so, so
wrong that it is almost hard to accept if you look at it in any
way at all. And my guess is if we looked at the way my good
friend from Utah voted on judges over the last years he has
been in office and the way I voted on judges, we would agree on
most of them because we agree on most judges as we vote. But it
is clear that his philosophy would dictate he voted against
certain judges and for others, and I probably did the mirror
image because our philosophy does influence how we vote. We are
just not simply interpreting the legal excellence of the mind.
I do agree with him, as I said before you came in, that I don't
like this ``gotcha'' stuff. I think that has become a
substitute for all of this, but how come it is, when there is a
Republican nominee, it is the Democrats who focus on the
``gotcha'' stuff, and when it is a Democratic nominee, it is
the Republicans who focus on the ``gotcha'' stuff?
Again, if we weren't doing ideology, whether someone smoked
marijuana in college or went to some book shop and got a
certain book or movie, the vote should be even disbursed
through the political spectrum. It is not because it is sort of
a kabuki game.
Well, what I have tried to do in the year that I have been
chairman of the Courts Subcommittee is bring some level, at
least I would call it, of honesty to the debate. Let's admit
that ideology should play a role. Let's ask those questions. I
think it is my obligation to ask those questions, and I will
tell you, I am opposite of Senator Hatch. Any judge who doesn't
answer questions about their philosophy, their views on the
First or Second or Fourth Amendments, should not be put in such
an important and august position where there is a lifetime
appointment.
So let me----
Senator Feinstein. Senator, your significant treatise took
10 minutes and 32 seconds.
Senator Schumer. May I ask one question?
Senator Hatch. Could I as a point of personal privilege
just make one note for the record? I only voted against one
Clinton judge out of the 378 that we passed. So I hardly used
ideology----
Senator Schumer. I bet it wasn't a conservative.
Senator Hatch. Well, I don't know what he was, to be honest
with you, other than I didn't feel he was right.
Senator Schumer. Could I ask one question, Madam Chair?
Senator Feinstein. Yes, one question and then we go to
Senator Sessions.
Senator Schumer. OK. So here is my question, and maybe if
we have a second round, I would like to ask some specific ones.
I did not intend to take that long, but this is a subject that
excites me.
Now, let us assume--because I think choice is a very
legitimate issue for us to question judges on, and so I would
like to know your views, and here is the way I would phrase it:
It is 1965. You are sitting in the Supreme Court of the United
States. Chief Justice Warren comes into your chambers with a
copy of the opinion in Griswold v. Connecticut, the seminal
case that held there is a right to privacy in the Constitution.
He asks for your thoughts on the opinion. Now, there is no law
to follow right now, but he is asking for your opinion in terms
of everything that has been part of you. What do you tell him?
Do you agree with the holding? Do you agree with the
outcome but get there in a different way, in other words, that
there is a constitutional right to privacy, the penumbra of
which extends to at least the first two trimesters of a woman's
pregnancy? What do you tell Judge Griswold [sic]?
Justice Owen. Well, Senator, again, I've responded somewhat
to this question before, but I can assure you that nothing in
my personal views on any topic has influenced or would
influence my ability to read the U.S. Supreme Court precedent
and to apply it. And, frankly, I don't----
Senator Schumer. But this time there was no precedent. That
is why I am asking you the question as I did.
Justice Owen. I don't see it as my role as a judge on the
Supreme Court of Texas or as an intermediate judge to delve
into decisions and critique them or say this was wrong on the
law or this was right on the law. And, frankly, when I have
read those decisions, that is not the way I approached them as
a lawyer, and that is not the way I've approached them as a
judge, are they right on the law, are they wrong on the law.
I've always approached them with trying to figure out what did
they say in these opinions, what was the basis for their
opinion, and how does that play out in the factual situation
that either my client, when I was a lawyer, has or now as a
judge in the case before me.
Senator Schumer. Judge Owen, being on the Texas Supreme
Court, certainly being on the Fifth Circuit, as you know, the
Supreme Court only deals with about 75 cases a year. You are
going to be asked, when you are a judge, questions like this
every day. To say, to duck the question--and that is what you
did, and I am not trying to surprise you; my staff told the
people in the Justice Department I would ask you this very
question--I don't think is fair to us. I don't think it is fair
to me. I don't think it is fair to the 19 million people I
represent in New York. I want to know your opinion. This was a
case where there was very little precedent that was directly
relevant. The Supreme Court made a decision that is still with
us in terms of its controversy, in terms of the heat that it
generates on both sides.
I think the American people, the people of the Fifth
Circuit, are entitled to know how you would advise Judge
Griswold [sic] on that opinion because it shows your view,
something very important about whether you think there is a
constitutional right to privacy, how far you think it extends,
et cetera. And this is a case that has already been decided,
but it can tell us how you think and where you come down. And I
don't think your answer--I understand that you do that, but on
the Texas Supreme Court--you are much more familiar with it
than I am--you had to make decisions like this all the time.
You certainly will on the Fifth Circuit.
So I would ask you again: Can you give me something more
specific rather than telling me that your methodology is not to
answer questions like that?
Justice Owen. Well, let me tell you----
Senator Schumer. Because you would have to answer them when
you sat on the court, when you wrote opinions, when you agreed
with the majority opinion, when you dissented, and you have
done it and we all know you have done it.
Justice Owen. But I don't approach decisionmaking that way.
I've never--I'm not asked to come in in a vacuum and say, well,
what do you think is----
Senator Schumer. I am not giving you a vacuum question. I
am giving you the specific facts of a case. I mean, we have
talked a lot about parental consent. I mean, I am sure you have
read the Griswold decision.
Justice Owen. Yes, I have.
Senator Schumer. OK.
Justice Owen. It's been a long time, but I've read it, yes.
Senator Schumer. I am asking--OK. Well, it is an important
decision even in terms of talking about parental consent.
Obviously you are dealing with a different Constitution here,
Texas versus the United States. But you have to be able to tell
us more than this is not the way I think. I mean, I just
don't----
Justice Owen. Well, I was going to expand on my answer,
but----
Senator Schumer. Please do.
Justice Owen. When you say that that's the way--you're
going to have to think that way, and I respectfully----
Senator Schumer. I am asking you----
Senator Sessions. Senator Schumer, let the lady answer the
question. You have asked her----
Senator Schumer. Well, I am just trying to--OK. Go ahead.
Justice Owen. The way I would approach that case had I been
on the court then is the same way that I approach
constitutional issues today, and that is, I read everything
that the U.S. Supreme Court has written up to that point on the
issue. And, frankly, Senator, I don't know--I didn't read the
briefs in Griswold. And I'm, frankly, so influenced by the
existing body of law that we've had the right to privacy for so
many years, my court has recognized a right to privacy under
the Texas Constitution, I think it's kind of hard at this point
for me to erase all of that out of my mind and put myself back
in their shoes without all of this case law that's come down
the pike, not having the benefit of the briefs or the
arguments, to say how would you have written, were you writing
on a clean slate, it's very difficult for me to write on a
clean slate when I have all of this historical law now out
there.
And, again, I don't write on a clean slate when I answer
constitutional issues.
Senator Schumer. What I would like to do, because I know my
time is up--and I appreciate the indulgence, Madam Chairperson.
I would like to submit some written questions that specifically
ask some of these things and see if we can get a more specific
answer and give you a little time maybe to review the case law,
whatever you would have to review as if you were being a judge
on the case in some sense.
Senator Feinstein. Thank you, Senator Schumer.
Senator Sessions, you are next up.
Senator Sessions. Justice Owen, you recognize Griswold to
be the law and would follow it?
Justice Owen. Yes, Senator.
Senator Sessions. And if called upon to apply its
principles, you would apply them in your decisionmaking
process?
Justice Owen. Absolutely.
Senator Sessions. Well, I think you handled this precisely
right, and I am sorry Senator Schumer was unhappy with your
answer. But you handled it precisely like a jurist should
answer it. How could you be expected to put yourself back into
that circumstance without having read all the briefs, without
having studied the law carefully, and to render an opinion on a
case of that importance? I note Senator Schumer left, and
recently he complimented Justice Hugo Black of the Supreme
Court on his views on the Constitution. And, of course, Hugo
Black dissented in Griswold. So these things are of interest
and, I guess, fun to talk about. But, in reality, as the person
who is being considered for a judgeship, I think you have
demonstrated the right characteristics in a judge, that is, to
be cautious not to express opinions until you have fully
studied all the briefs, all the law involved, as your record
demonstrates you do so skillfully.
I would just note that your testimony has been
extraordinary. I have been very impressed with your command of
the cases you have handled, the hundreds that you have handled.
I have been very impressed with your ability to articulate your
thoughts in a reasoned and fair way. I see no hint of extremism
or activism or some obsession with forcing some political
agenda on anybody, not one hint of it. And it is disturbing,
actually, to have those comments be made. I just don't believe
there is one hint of it.
Justice Owen, I have also been impressed, as Senator Gramm
and Senator Hatch noted, that you came at this service to the
Supreme Court of Texas because of a desire to serve. It cost
you, I am sure, financially significantly. You have won re-
election with 84 percent of the vote. The American Bar
Association, who certain members of this committee insisted
must have a bigger role than they have had in recent years in
the process, has unanimously rated you ``well qualified.'' That
is the highest rating you can get, and a unanimous vote for
``well qualified'' is very rare. And they had the opportunity
to study your record. They have seen you on the bench, and they
have talked to your former law partners. They have talked to
lawyers who have litigated against you. They know your
reputation and your ability, and I think they made a well and a
wise choice in rating you ``well qualified'' unanimously.
I have to be impressed with your academic record: No. 2 or
three in your class, made the highest score on the bar exam.
What an accomplishment that is, in a big State like Texas,
particularly. So I just think you have so much to be proud of,
and I particularly like your demeanor and the way you have
handled yourself under some of the questions that have been
brought forward.
And I also note, it seems to me, that you have not been
just a potted plant. You have been a reformer in your life in
the law about the rule of law. Tell me how you feel about the
responsibility of a judge or a public official. What is their
responsibility about defending and strengthening the rule of
law in America?
Justice Owen. Well, I think that's the ultimate
responsibility, is to defend and strengthen the rule of law in
America. I think we all understand that our society is built on
laws and that that is what basically orders our society. That
helps us plan. That helps us have predictability. It helps us
have stability. It helps us know that cases won't be decided
randomly based on sympathy or passion, when they should be
decided another way under the law. So I think the rule of law
is very important, that it's consistently and fairly but with
common sense applied in every case.
Senator Sessions. Well, now, is that why when you are asked
to rule on a case you just don't spout off the answer, as some
would have you do in this hearing? Is that why you go back and
you take the Texas statute on notification, parental
notification, and then you know that it is passed during a time
in which they were considering the Supreme Court rulings as
they tried to craft a statute for Texas? Is that why you went
back and studied the U.S. Supreme Court cases to try to
understand what Texas was trying to do so that you could give a
fair and objective answer as to what the statute really meant
and what the legislature intended?
Justice Owen. Yes, Senator. Let me--if I can explain this.
Maybe I have not done a very good job of it yet. But when the
legislature used the words ``mature and sufficiently well
informed,'' that could mean a lot of different things to
different judges all across Texas. And so given that that was
kind of an amorphous definition, I thought, Where did they come
up with these words? What definition did they have in their
minds when they picked these words?
And then when I went and read the Supreme Court cases that
they pulled the exact language out of, I looked at how did the
U.S. Supreme Court define ``informed.'' What did they say is
relevant to an informed consent? How did they define ``informed
consent''? And I believed that the legislature was looking to
the cases out of which it picked the words ``mature and
sufficiently well informed'' for us to glean what the actual
definition was, what the factors that courts were to consider
in deciding if someone was making an informed decision.
Senator Sessions. Well, I think that is what a great jurist
does, and I think you handled that. You did it exactly right.
That is precisely what should be done.
You know, looking at your background, I see a person who
has worked hard to reform and improve the system. Senator
McConnell noted your voluntary limiting of your contributions.
He did not mention the fact that after you had a relatively
easy race last time, you gave back one-third of the
contributions. I don't know anybody in this body that has ever
done that. And that is a remarkable thing, indeed.
I notice that you worked hard to encourage the Texas
Legislature to secure more Legal Service funding for the poor
and were successful in that.
Justice Owen. Yes, Senator. We were particularly hard hit
in Texas when legal funding for LSC, the Legal Services
Corporation, nationwide was cut back. Texas kind of got a
double whammy. Not only were our traditional Legal Services
offices cut back in budget, but Texas has a large migrant
worker population, and funding for the migrant workers
particularly hard hit. And a lot of people, including me, were
concerned that the basic infrastructure through which legal
services to the poor were delivered in Texas was going to
collapse because we were that close to the line.
So we had to look for ways to put more money in the system
to keep the professionals who were involved in sort of the
backbone of the delivery system in place, because if we lost
that, we would not be able to anywhere come near meeting the
legal services needs of the poor in Texas. And so a group of
folks, not just me, certainly--I was the court's liaison and
was involved in it, but explored ways that we could put--get
more funds, and ultimately the legislature passed the statute
that put more money in legal services for the poor.
Senator Sessions. And I noticed you helped organize Family
Law 2000, a conference, an effort to educate parents about the
effects of divorce on children. I have heard a lot of people in
the know in the legal system express concern that too often a
divorce proceeding becomes an adversarial gladiator sport and
that children are hurt unnecessarily in the process. Is that
what you were dealing with there?
Justice Owen. Yes, Senator. I did not practice family law,
but when I got to the court, it was clear to me that 51 percent
of the civil cases in Texas are family law matters, and that's
sort of where the rubber hits the road, if you will, for most
citizens in Texas. And almost--you know, so many people have
experience with the family law courts, and a lot of lawyers and
a lot of family law judges and psychologists have been
concerned that this is--that the adversarial process is really
hard on the children, and that sometimes lawyers escalate the
process. Sometimes the way the laws are designed escalate the
process. And we were sort of a think tank to try to think
outside the box to the point of maybe really restructuring the
way legal services are delivered, the family laws, to try to
make this more of a unified approach to divorces, not just from
the legal standpoint but from other aspects, and, again, try to
focus on getting people to make consensus decisions,
particularly for their children in the divorce context, and not
in such an adversarial way.
Senator Sessions. Well, I think that is good, and I know
you have served on the board of the Texas Hearing and Service
Dogs program that helps the blind and those with disabilities.
You teach Sunday school at St. Barnabas Episcopal Mission. You
have given back to your community in a lot of different ways.
Let me ask you this: I know that my friend Dan Morales, the
Attorney General of Texas, we served together, intervened for
the state of Texas in an environmental case. You were asked
about the City of Austin case and it was suggested that you
were somehow doing something to help polluters or evil groups.
But I noticed--and I assume Texas is like Alabama where the
Attorney General represents the State in legal matters and
speaks for the State in court. Is that correct?
Justice Owen. That's correct.
Senator Sessions. And the Attorney General, Dan Morales,
intervened in that case on the side of the State of Texas, and
he took the position, as I understand it, that Texas State had
entered into this area and their law predominated, and that
cities, the city of Austin did not have authority. And you
eventually agreed with him in general on that opinion?
Justice Owen. I did, absolutely. I agreed that the State--
the State basically trumps the city, it was my view, and there
were extensive regulations in this area above and beyond the
water regulations that applies to everybody in the State. This
was not a non-regulated area. This is the same regulations that
apply to any landowner in Texas apply to these folks, plus they
had to have a water quality plan under the TNRCC, where they
were subject to the TNRCC. They were subject to ongoing Federal
regulations. So this was far from an unregulated area. The
question was whose law was going to control, the State statute
or the city's ordinances. And it seemed to me that the State
certainly could take away the ETJ, extra-territorial
jurisdiction, in its entirety. And if that were so, why
couldn't they regulate here and tell the city no, our
regulations--we choose how to regulate. We don't want you to
regulating here.
Senator Sessions. Well, I think you are right, and, of
course, Mr. Morales is a Democrat and a capable Attorney
General who was advocating for the State's interest. And, of
course, a lot of people don't think about this and a lot of
cities don't like to think about it, but cities are creatures
of the State. The States are sovereign, have a sovereign power
within that constitutional scheme, as does the National
Government, but cities are total creatures of the State. And if
there is a conflict, I think you came down on the right side
between which is the pre-eminent authority within a State.
Well, there are several other cases that I could go
through. I do want to say that I think your ruling with regard
to the Ford Motor Company case and venue was important. Venue
is important. It is not correct or just to allow a plaintiff to
choose any county in the State of Texas to file a lawsuit just
because there is a Ford dealership in that county. In this
case, as I understood it, you ruled consistent with Texas law
that the case should be filed where the plaintiff lived, where
the car was purchased, and where the accident occurred. All of
those occurred in the county where venue was proper, and you
did not deny them relief, but you simply sent the case back
with the order to go to the correct county for venue purposes.
Is that correct?
Justice Owen. That's correct.
Senator Feinstein. Senator, your time is----
Senator Sessions. My time is up, and I would just say that
I appreciate your candor. I appreciate your ability. I am
impressed with the American Bar Association's evaluation of
your performance. I am impressed with the evaluation of the
people of Texas of your performance when you got 84 percent of
the vote. And I believe we have had few nominees come before
this committee ever who have testified more ably or who have
better qualifications for the Federal bench.
Justice Owen. Thank you.
Senator Feinstein. Thank you, Senator.
Senator Edwards?
Senator Edwards. Thank you, Madam Chairman.
Good afternoon, Ms. Owen. You have been here a long time. I
want to focus, if I can, your judicial decisions.
Justice Owen. OK.
Senator Edwards. Tell me first, in cases involving the
intentional infliction of emotional distress, whether you agree
with the decisions in your court, in the Texas Supreme Court,
that say--and I am reading now from one of those--that the
overwhelming weight of authority, both in Texas and around the
country, is that conduct involved in any particular case should
be evaluated as a whole in determining whether it is extreme?
Justice Owen. I think that's generally true, yes.
Senator Edwards. The case that I want to ask you about that
I have not heard others ask you about today, is a case
involving three women who brought a case against GTE. The lead
plaintiff Was Bruce, Rhonda Bruce, Linda Davis and Joyce
Polstra. Based upon what they contended was extreme conduct in
the workplace. And the evidence in the case--I am looking at
the opinion now--was that the employer's manager, who was the
person involved in the case, the defendant's manager, ``soon
after arriving at work engaged in a pattern of grossly abusive,
threatening and degrading conduct.'' And again I am reading
from the decision now. ``He began using the harshest vulgarity
shortly after his arrival. He regularly heaped abusive
profanity on the employees,'' including these three women. On
one occasion when he was asked to curb his language because it
was offensive, he positioned himself in front of one of the
plaintiffs, one of the women, and screamed, ``I'll do and say
any'' blank ``thing I want, and I don't give a'' blank ``who
likes it.''
At one point another female employee raised a question, and
he said, ``I'm tired of walking on'' blank ``eggshells, trying
to make people happy around here.'' The opinion says, ``More
importantly, the employees testified that Shields repeatedly
physically and verbally threatened, abused and terrorized
them.''
And then the court, in considering that conduct as a whole,
as you have just indicated the law provides, found that the
jury verdict against the defendant was appropriate. And you
wrote a concurring decision, where you agreed in part with the
majority decision and dissented in part--disagreed in part. You
did not dissent, but you disagreed with some of the conclusions
that the majority had raised. And among those disagreements you
found that the following conduct is not a basis for sustaining
a cause of action of intentional infliction of emotional
distress.
And before I go through this long list of things that you
said was not evidence to be considered, taken as a whole, and
whether the defendant had acted outrageously, because I
understand that you have told me that that is the legal
standard. The question is whether any of these things taken as
part of the overall case is something that would constitute
extreme behavior under the law. The first thing you listed
was--not to be included----
Justice Owen. But, Senator, may I?
Senator Edwards. Sure.
Justice Owen. I just want to make clear what--that you
understand, that everybody understands what I was saying here.
I was not saying that you can't consider the totality of the
circumstances, and I absolutely agreed with the majority that
this guy was way over the line in this case. My only point in
writing this was if you take--my only point was if you take
these things that I listed out of that, the context of all of
the other things that happened and standing alone, that you
can't--this would not support a judgment standing alone. And I
was concerned particularly----
Senator Edwards. Excuse me. Did you say that, what you just
said?
Justice Owen. I said, ``That the following conduct is not a
basis for sustaining a cause of action for intentional
infliction of emotional distress, even when the employees who
were upset by the conduct were women.''
And my point here was that if this is all that happened, I
mean, if you just have someone--and we can go through them--
cursing, that it's not accompanied by sexual harassment, or
cursing, but it's not directed at the woman, that by itself
will not give you, I don't think, sufficient grounds for
intentional infliction of emotional distress. And I was
concerned that people would read all the laundry list of what
happened in the majority opinion, and say, ``Well, if I can
prove any one of these things, then I'm there.''
And I wanted to make it clear that I did not agree that if
this is what you had without all of the other things that this
man did----
Senator Edwards. Let me--excuse me. I am sorry.
Justice Owen. That you wouldn't get there. And that was all
I was trying to make clear, because there were some statements
that I thought conflicted particularly with very recent
decisions out of our court and people might get confused, and
so I wrote separately to point that out.
Senator Edwards. Well, I guess I would first point out that
the majority opinion I do not think ever said that any of those
things standing along would be enough. They applied the law as
you have recognized it to be, which is if you look at the
totality of the circumstances.
Justice Owen. And I agree with that.
Senator Edwards. And they listed these things as things to
be considered as part of the totality of the circumstances. And
what you said, if I am reading it correctly in your decision,
``The following conduct is not a basis for sustaining a cause
of action.''
Can I just go through them and ask you about each one?
Justice Owen. Sure.
Senator Edwards. The first one you said was cursing,
profanity or yelling and screaming unless when it is not
simultaneously accompanied by sexual harassment or physical
threatening behavior. The second you listed was pounding fists
on a table when requesting employees to do things. Third was
going into a rage when employees leave an umbrella or purse on
a chair or a filing cabinet. The fourth you listed was
screaming at employees if they do not get things picked up.
Five--I am jumping around; you have got a long list, and I am
not going to read them all--is requiring an employee to clean a
spot off the carpet while yelling at her. Another one is
telling an employee that she must wear a post-it note that
says, ``Don't forget your paperwork.''
So this is a list of things that the majority, as I
understand it, consider taken as a whole, as evidence that
would support a verdict in favor of this three women, which the
jury had found, as I believe.
You have listed these things and said that they--in the
language of your decision, that they are not a basis for
sustaining a cause of action. And what I understand you to be
saying to day is that standing alone, these things are not a
basis for a cause of action. Is that correct?
Justice Owen. That's correct. And I also want to make it
clear that we're not talking about sexual discrimination here
or anything of the sort because lots of things obviously would
be grounds. We were talking about a tort that's been reserved
by my court for very extraordinary circumstances, the so-called
tort of intentional infliction of emotional distress, as
defined by the restatement. So we're not--this is not conduct
that I would say that is OK in the workplace under other causes
of action. We're looking at one----
Senator Edwards. But you specifically said that each of
those things that I just read----
Justice Owen. I specifically said standing--again, my point
was that if this is what a plaintiff shows, that would be
insufficient. You can't just say, ``In GTE-Bruce they said
this,'' so therefore I've met the standard. I'd want to make
sure there wasn't any confusion about what else would have to
accompany that conduct to get to intentional infliction of
emotional distress.
Senator Edwards. Yes, ma'am. But I believe, as you said a
few minutes ago, the majority never suggested that any of those
things standing alone would be enough. And you didn't
specifically say--unless I am missing it in your opinion--that
any of those things standing alone would not be----
Justice Owen. I didn't use the words standing alone----
Senator Edwards. What you said was they would not sustain
or form a basis for a cause of action, which has legal meaning
as I understand it; is that correct?
Justice Owen. That's correct.
Senator Edwards. Can I ask you about another area?
Justice Owen. Sure.
Senator Edwards. There are some cases where you have
dissented. I will just mention some. Some have already been
mentioned today and I will not go over those again. But they
are primarily cases where a child or a family or someone was
involved, bringing a case against either an insurance company
or a manufacturer, or a corporate defendant of some kind. And
in several of these cases that I am looking at now, you
dissented, you disagreed. And in each case you sided with the
defendants. Your ruling was against the person who brought the
case, the individual who brought the case. One was a boy who
brought a malpractice case from having surgery with serious
complications, the Weiner v. Wasson case.
Another was the Wilkins v. Helena Chemical Company, where a
farmer sued a seed manufacturer because the seeds he had bought
did not work, they did not grow. Again, you sided with the
chemical company.
Another was a worker's arm, the Sonnier v. Chisholm-Ryder
Company, where a worker's arm was severed by a tomato chopper.
He brought a case against the manufacturer. You dissented
against the worker on behalf of the manufacturer.
And another was a man who was injured changing a tire when
the tire exploded, and he brought a case against Uniroyal-
Goodrich Tire.
And in some of these cases, and some of the other cases
that have been mentioned during the course of the day, your
dissent was pretty sharply criticized by those in the majority
as--for different reasons.
Senator Feinstein. Senator?
Senator Edwards. Yes.
Senator Feinstein. Not only is your time up, but just so
everybody knows, I am really going to be strict on the time
limit because we have two other judges to go. It is 10 minutes
after 4 and we are going to adjourn at 5.
Senator Edwards. Sure, that is fine. Let me get an answer
to this question.
In these cases, all of which you dissented in favor of
manufacturers companies against individuals, and in some of
these cases at least there were some pretty sharp criticism of
your decision, your dissent, I should say, as there were in
some of the other cases that have been mentioned in the course
of the day. I just wondered if you can point us to any cases
where you have been criticized by your colleagues on the court
for having gone too far in favor of an individual, a child, a
family, who brought a case against a defendant, a manufacturer,
a corporation, and if you do not know--in fairness to you, I
know you cannot remember everything sitting here today--if you
can tell me of any today, I would appreciate that. If you
cannot, I will give you a chance to provide that information to
us, because I would like to see it.
Justice Owen. One case that comes to mind, and let me talk
about it for a minute, is the Saenz v. Fidelity, I want to say
its Guaranty, I'm not sure. It's Fidelity something. It was a
Worker's Compensation case. And the plaintiff ended up settling
with the Worker's Comp carrier. And she later contended that
she had been defrauded into entering that settlement, and she
sued for bad faith. And the court, a majority of the court
ended up saying, for various reasons, that she didn't have a
bad case cause of action. I agreed with that, but I dissented
from the case because I said she's established fraud, and under
the law she's entitled to rescind that Worker's Comp decision
and go back and claim her benefits and start all over again.
And a majority of the court disagreed with me and said, no, she
does not get to rescind, she does not get to go back and start
all over. And I have certainly ruled for--you've named four
cases. I can name cases where I've ruled in favor of workers,
consumers----
Senator Edwards. Can I interrupt you? I want to be very
specific about, very specific cases where you have in fact been
criticized. Some of these cases are cases where you have been
criticized by your colleagues for going too far on one side of
the equation.
I am just asking now whether you can point us to cases
where--you have just indicated one case, where I believe you
actually ruled with the majority against the jury verdict, if I
remember correctly, the Sands case.
Justice Owen. That's correct, that I thought she should get
a remand and be able to set aside the agreement and proceed
with her cause of action.
Senator Edwards. Let me just ask you if you can--I know my
time is up and we need to let other people ask questions. If
you have cases such as that, I would actually like to see them.
I think all of us would like to see them.
Justice Owen. You want me to find cases where my colleagues
are criticizing--even if I--you don't care about the cases
where I----
Senator Edwards. Or disagreed with you, disagreed with you
is also OK.
Justice Owen. So if there--you just want cases--you don't
care if I ruled for the consumer, as long as it has to be a
case where I was criticized for doing so. Is that the question?
Senator Edwards. No, ma'am. There are a series of cases
where your colleagues on the court have been critical and
strongly disagreed with what you did where you ruled for one
side. Some of the ones I have mentioned today and some of the
ones that have been mentioned by others.
I am asking you are there cases on the other side of that
equation?
Justice Owen. Well, there are certainly cases where I ruled
large verdicts for injured people. And I guess I don't remember
if people criticized that or not, but we've upheld--and I've
been part of it--upheld holding rules of law and verdicts for
plaintiffs of significant rules of law, in statutes of
limitations areas, of independent contractor area. I don't
remember if they were dissents. I don't remember if I was
criticized for doing it. But I have certainly----
Senator Feinstein. What you are asking is that she send
those cases to us in writing.
Senator Edwards. Right, that is correct.
Senator Feinstein. If you would.
And thank you very much, Senator Edwards.
Senator Edwards. Thank you, Madam Chair.
Senator Feinstein. Senator Brownback?
Senator Brownback. Thank you Madam Chairman.
And thank you as well, Justice Owen for appearing here, and
you have waited a long time for the hearing, 14 months, to be
able to get in front of the Committee, so I am delighted that
we are holding the hearing and going to be able to talk with
you today about your qualifications, your background, and your
service on the Circuit Court, which I hope we are able to
affirm and move forward with.
If I could point out one thing, just in listening to the
last discussion on the case, I believe that was GTE v. Bruce,
the case you were talking about. I believe in that case you
joined a unanimous court, ruling on the court, and affirming a
$275,000 jury verdict for the female employees that had been
sexually harassed; is that correct?
Justice Owen. I did. I did.
Senator Brownback. So we are talking about a unanimous
opinion by the court. You wrote a concurring opinion on that,
that did hold for the female employees; is that correct?
Justice Owen. Yes. And the reason I wrote the concurring
opinion, again, is we had just recently issued, in the last few
years, right in front of this case, cases involving intentional
infliction of emotional distress in the workplace, and I was
concerned that people would pick up GTE v. Bruce, pick up our
prior decision and say there's an inconsistency here. How could
you have said in these cases it's not intentional infliction of
emotional distress, and then list the things that I listed and
say that is. And I wanted to try to square----
Senator Brownback. You did not want to redefine the common
law tort. You did not want to try to redefine that.
Justice Owen. No, I did not. I was just trying to make sure
that I was explaining how I could square our prior decisions,
again which were fairly recent, in the employment context, with
the specific evidence that was in this case.
Senator Brownback. I just did not want anybody to get the
impression that you ruled against the females employees or held
against their case. You held for their case.
Justice Owen. I did, absolutely.
Senator Brownback. You upheld a $275,000 verdict in that
case by the plaintiffs against the defendant. Is that correct?
Justice Owen. That's correct.
Senator Brownback. I think that is important because we
sometimes lose it in the factual setting, that somehow you did
not find this bad behavior. You did, and you agreed with the
court that this was illegal, wrongful behavior and that jury
verdict should be upheld, and I think that is important for us
to get clear.
Another thing I want to go to, because a lot of the outside
groups that really try to derail nominations in this town and
pick apart people's records who are very well qualified, and
you certainly are well qualified for this position, is the
parental notification Texas law, and we visited this a couple
times today. But I just want to make sure that I am clear and
that we are all clear on this.
The only cases that got appealed on up to the Texas Supreme
Court were those where the judicial review had been denied. In
other words, the easier cases were taken at the lower court,
and at the lower court, if a girl had come forward, wanted an
abortion, wanted not to have her parents informed, the court
had already ruled yes, you can do that. The only cases that
were appealed were the ones where that had been denied. Is that
correct?
Justice Owen. That's correct. If either the Trial Court or
the intermediate court granted the bypass, that was the end of
it.
Senator Brownback. So if the judicial bypass was granted,
motions granted, it moves on forward. And if I understand your
numbers correctly, about 600 of those were done at the lower
court level in the time period we have been talking about in
your service in the Texas Supreme Court.
Justice Owen. We know that at least 650 bypass proceedings
have occurred. There may be a lot more. We just don't know. But
we know at least that many bypass proceedings have occurred.
Senator Brownback. Where the court ruled that the girl did
not have to inform he parents to obtain the abortion; is that
correct?
Justice Owen. Well, we don't know because they're
confidential, so we don't know the outcome. Out of the 650,
only 10 girls have appealed to my court.
Senator Brownback. So somewhere in there, but out of 650,
10 were appealed to the Texas Supreme Court where judicial
bypass had been denied?
Justice Owen. That's correct.
Senator Brownback. And it was a requirement that it had to
have been denied. So you had 10 cases that got in front of you
of 650. So you are looking at a small percentage. You are
looking at less than 2 percent of the cases that get to the
Texas Supreme Court.
And in those 10 cases, now, how did you rule; what was your
opinion on the 10? Do you recall how you split on those?
Justice Owen. Yes, I do. The first Jane Doe came to our
court twice, Jane Doe 1. The first time that she came, I agreed
with the majority of the court--everybody on the court actually
agreed that she did not meet the statutory standard. But I
agreed with the majority of the court was because ``mature and
sufficiently well informed'' was such a loose definition, and
trial courts could apply it. That could mean so many different
things to so many different trial courts that we needed to put
some parameters on it. And because she didn't have the benefit
of that, she should be remanded to the trial court and get
anther--have another hearing.
So if the trial court had granted her a bypass on the
remand, I would never have seen the case again. The trial court
denied the bypass again. The Court of Appeals again denied it.
And the second go-round I said it was a close call, but I
looked at the record, and under our evidentiary standards I
said there's some evidence to support what the trial court did,
so I would have denied it and the majority granted it.
Doe 2. I voted with the majority to remand it for the same
types of reasons, only this time it was a best interest issue.
We don't know what happened to Doe 2. We never heard from her
again.
Doe 3. I voted to deny the bypass.
Doe 4. I agreed with the majority of the court that she did
not meet the statutory standard.
And then Doe 10, which was the last Doe to come to our
court, I agreed unanimously--or the court did, that she was
entitled to the bypass as a matter of law. And I think I've
mentioned this before today, that there were five other Does
that came in between Doe 4 and Doe 10, where the court did not
write an opinion. We affirmed the lower judgment of the courts,
and as I explained, it takes at least six voted to do that. No
dissents were published or were noted. If they had been noted,
we would have had to have wound up and said, who vote which
way?
But I think it's a fair inference, given our opinions on
either side of those five Doe cases, that these probably
weren't close cases or somebody would have written something.
Senator Brownback. Because of the ten cases, these were
already 10 cases where two courts, the trial court and the
appellate court had already voted, already ruled to deny
judicial bypass. So they had said, no, you cannot bypass your
parents. Two courts had already ruled that in these 10 cases;
is that correct, in all 10 of the cases?
Justice Owen. Correct, in all of them, yes.
Senator Brownback. And then in the 10 that came to you, and
on to the Texas Supreme Court, you and the court split on some
of these cases and voted to remand to the lower court, to look
at again to see if they should grant the judicial bypass, and
in a majority of the cases you agreed with the lower two courts
in essence that a judicial bypass should not be granted. Would
that be a correct characterization of the----
Justice Owen. That's correct, and I believe that out of the
12 cases, I had a different view of the judgment than the
majority did in 3 cases, so I was with the majority I guess
that means 9 out of 12 times in terms of the judgment.
Senator Brownback. Just it seems to me, to make something
about this in your record as being outside the philosophical
mainstream is really a far stretch, where you have 600 some
cases, 10 that have been ruled against a judicial bypass at two
lower courts, and then it comes in front of you, and the court
splits and you vote with the majority most of the time, and
some of the cases are remanded for this reconsideration. Others
are not. It just seems to striking that this would somehow say
that you should be set apart on the issue of abortion, when you
are interpreting the law in tough cases, is what these cases
amounted to, and I would hope that my colleagues would look at
the factual setting here and how you have ruled, I think very
common sense and very broad-based and non-ideologically in
these cases. Some cases you voted to remand, for it to be
looked at again for judicial bypass, to other cases not. I
think that is a very fair-minded way on your part.
Let me just say, Justice, I thank you for putting yourself
through this process. You are extraordinarily qualified for
this position. And to wait for the 14 months that you have, and
then go through having narrow points on cases picked apart and
your record maligned, abused, and then trying to somehow to
point you out as an ideologue in any instance is totally unfair
to you and something you did not need to go through, and could
have remained absent from, but yet you have gone ahead and
submitted yourself to this process to be able to serve the
public, and I appreciate you doing that. You did not have to do
that. A lot of people do not like going through these sort of
process, and I do not blame them. But thank you for staying in
here and staying in the process. And I think you are going to
make an outstanding Circuit Court Judge. I hope we can move
this on through the Committee process and through the floor.
Thank you, Madam Chairman.
Senator Feinstein. Thank you, Senator.
Senator Cantwell?
Senator Cantwell. Thank you, Madam Chair.
And thank you, Justice Owen, for your time today and
patience in answering these many questions.
I think several of my colleagues have brought up the
specific issues relating to some of your decisions on parental
consent. And I think some of my colleagues have also posed
broader questions on the issue of privacy. But I am hoping that
I can expound a little bit on and understand your judicial
philosophy on these important issues. I think the issues of
privacy are growing in magnitude in our country. Whether it is
government intrusion in personal decisions, or government
acquiring information about activities of American citizens, or
businesses handling some of your most personal information,
this issue is just growing in magnitude. So understanding your
broad philosophy on this is, I think, very helpful for this
Committee and for the Congress.
My first question is really about your general thoughts on
the right to privacy. Do you believe that that right exists in
the Constitution, and where you think that right to privacy
does exist in the Constitution?
Justice Owen. Well, of course, I'm guided by the U.S.
Supreme Court cases that have recognized the right to privacy.
I think Griswold is one we discussed earlier that clearly
recognizes that. And there are cases from my court that
construe the Texas Constitution as having a right to privacy.
Senator Cantwell. I am asking you whether--we have had lots
of nominees come before the Committee, who have recited the
same things about following precedent and the recognition in
various decisions. But after being confirmed, they have not
followed those exact decisions or interpretations. That is why
I am asking the broader question of whether you believe that
the Constitution guarantees a right to privacy.
Justice Owen. Well, I think--that's the law of the land,
and there's nothing in my personal beliefs at all that would
keep me from understanding and applying that law.
Senator Cantwell. And where do you think that exists within
the Constitution?
Justice Owen. I wish I--because I do not want to misstep
here, I would like to have some of the U.S. Supreme Court
precedent in front of my on that particular issue because that
is just--I don't want to--that's not a question I would answer
as a judge off the cuff if I were deciding a case. I would
certainly go pull the U.S. Supreme Court precedent. I would
pull the Constitution. I would sit down and read it, and then
give an answer.
Senator Feinstein. Senator, if you will excuse me just for
a moment, was not your question, does the Supreme Court
guarantee a right to privacy?
Senator Cantwell. My question was about the Constitution.
Senator Feinstein. I mean the Constitution guarantee a
right to privacy?
Senator Cantwell. Yes.
Senator Feinstein. You cannot answer that yes or no?
Justice Owen. Well, yes, clearly it does. The U.S. Supreme
Court has said it does. That's been the law for a long, long
time. I thought that she was asking me specifically, can you
tell me where that is derived from, the specific language----
Senator Cantwell. I am asking whether you believe that
there exists such a right to privacy in the Constitution,
because in interpreting these cases--and I will follow up with
some of your other cases and comments--that is the issue. We
are trying to find out whether you will follow precedent, and
obviously in a variety of cases you have dissented, and
dissented in such a way that it has left a question mark, at
least in my mind, and I think perhaps some of my colleagues.
Questions as to why you dissented and some of the issues that
you brought into the dissent.
So this particular issue,--we have had nominees who have
said that they believe in upholding a woman's right to choose,
and then when it came to major decisions, went in an opposite
direction.
That is why I am trying to understand your personal belief
in this right.
Justice Owen. Well, again, I don't let my personal views
get into it, but I very clearly pointed out at several
junctures, particularly in my Doe 1 case, that there is a right
to choose recognized by the U.S. Supreme Court. It applies to
minors, that you cannot prevent a minor from going to court
without the knowledge of her parents to get a judicial bypass.
I pointed out that I had concerns about some of the Texas
Family Code Provisions in the divorce context, when a minor--a
parent would be required to notify another parent under a
divorce decree, that that might lead to some of the problems
under the sexual, physical or emotional abuse. I said that that
would probably be unconstitutional. I think I had clearly
demonstrated that I have thought about the U.S. Supreme Court
decisions and how they apply in this context, and also how they
might apply under other Texas laws that impact this area, and
that I am willing and able to follow it.
Senator Cantwell. Well, let us go specifically to the Doe
cases. I am sorry, I do not know exactly--what you said earlier
about the Doe cases. In Doe 1, you wrote that a woman seeking a
judicial bypass should demonstrate that she has considered
philosophical, social, moral and religious arguments that can
be brought to bear when considering abortion. And that you were
following the decision of the Supreme Court in Casey. However,
in Casey the court ruled that states can enact rules designed
to encourage a woman to know that there are philosophical and
social arguments of great weight that can be brought to bear in
considering an abortion, but there is never any mention of
religious implications.
Justice Owen. That is in H.L. v. Matheson. The reference to
religion is in H.L. v. Matheson. I think they said--I can give
you the cite, but they talked about--let me see if I can read
it here for you, that that was a factor that they said that
there are religious concerns. Let's see. ``As a general
proposition that such consultation''----
Senator Cantwell. That is not in Casey.
Justice Owen. It is in the U.S. Supreme Court decision H.L.
v. Matheson. In my opinion, these were--I hope you understand,
were drafted fairly quickly. I did cite H.L. Matheson in my Doe
1 decision, not on this point. I cited Casey and I cited the
second decision in City of Akron. And I cited Matheson on
another point, but in Matheson they talk about that for some
people it raises profound moral and religious concerns, and
they're talking about the desirability or the State's interest
in these kinds of considerations in making an informed
decision. They don't say you have to have religious beliefs,
and I don't for a minute advocate that. The only point I was
making----
Senator Cantwell. There was also a detail in your Doe I
dissent that basically said that you did not think that a
physician would be the person who could give that kind of input
or advice to a woman. So I think you can see our concern. You
are dissenting in these decisions about a major issue of
privacy, and you are injecting, where others on the court did
not, this issue of religion. On parental notification, I mean
these laws have been fought and passed by legislatures with an
eye to the extreme cases. Obviously, we have talked about the
abuse issues, but now we are saying to a young woman that she
has to sit down, not with her doctor, but some religious
leader, and have an explanation about this issue before she is
going to have the ability to get the approval to proceed
without parental notification.
Justice Owen. Well, let me make sure that we're talking
about the same thing. If there's abuse, this all goes out the
window. It's a separate ground. You don't----
Senator Cantwell. Say it is two 18-year-old cousins.
Justice Owen. I am sorry?
Senator Cantwell. Say it is two 18-year-old cousins.
Justice Owen. Well, 18-year-olds are not covered by the
statute. Oh, you mean that she is consulting. Again, the U.S.
Supreme Court has talked about getting counseling from a
qualified source, and it was not me, but Justice White----
Senator Cantwell. What if I am not religious?
Justice Owen. I am not saying you have to get religious
counseling. I never advocated that.
Senator Cantwell. Well, who delivers the counseling?
Justice Owen. I have advocated that you have the have
religious counseling. What the U.S. Supreme Court said, and
what I followed, what I agreed was a part of the definition of
information, that it is not just information about the physical
impact on the girl or the physical risks. And what Justice
O'Connor wrote for the Court was that there are profound--and
that's her word, not mine--philosophical and moral and other
considerations that go into an informed choice, as in the----
Senator Cantwell. That is exactly right, and that is where
in your dissent, you threw in the word ``religious
considerations.'' So I am trying to figure out----
Justice Owen. That came from H.L. v. Matheson.
Senator Cantwell. And you believe that religious
consideration it should be a required factor. If you were the
majority how would the statute have been implemented?
Justice Owen. It would have been implemented the that girl
who is seeking an abortion should indicate to the trial court
an awareness that there are arguments and issues. She doesn't
have to agree with any of them. She doesn't have to explain
what her philosophy is. She doesn't have to rationalize or
justify her philosophy or her moral code or her religion if she
has any.
But all that I said was, in what I think is a fair reading
of what Justice O'Connor said, is we're talking about awareness
that there are arguments out there on both sides,
philosophical, moral, and in H.L. v. Matheson arguments,
religion. If she doesn't have religious, that's no business of
the courts. The only question is, if she does, has she thought
about her own beliefs. Is she aware of the philosophical
debate, the moral debate? Just the issues, not--she doesn't
have to get into does she agree with them, and debate it with
the judge, but simply is she aware----
Senator Cantwell. Is the doctor capable of giving that
advice or not?
Justice Owen. I think it depends. I think it depends. I
think it depends on--I'm not sure she has to identify where she
got--where she obtained her understanding of the philosophical
and other issues. That doesn't necessarily have to be from a
counselor. As long as she exhibits an understanding of it. I
think she may need a counselor to give her some helps on her
options, the physical risks, that sort of thing. But I'm not
advocating that she have any particular set of values or morals
or religious beliefs.
Senator Cantwell. Madam Chair, I see my time has expired.
So I do not know if we are going, on----
Senator Feinstein. Do you have one more question, because
this will be the last question.
Senator Cantwell. I do, just quickly.
Justice Owen, obviously, if you are confirmed to the Fifth
Circuit, you will be responsible for determining when a law is
in fact the types an undue burden on a woman's right to choose.
Given your record in this area, you know, I have some questions
about your ability to recognize when a statute impinges on the
right to privacy, particularly given some of the laws that are
still on the books in the Fifth Circuit. So I guess I am asking
you, do you believe that you really have the ability to
recognize what the Court recognized in Casey, that there are
some law that can prevent a woman from obtaining abortion just
as surely if abortion were outlawed. Do you think you are going
to be able to recognize that?
Justice Owen. Senator, I do. I would point to you again
other places in my Doe 1 decision, where I have recognized that
in some situations even a notification statute can amount to a
consent statute but it is because of the particular girl's
situation, and I quote the Supreme Court on that.
As I pointed out, I expressed concern about the impact, the
undue burden on a minor's right to choose that might occur
because of particular provisions in our family code that deal
with divorce decree. So, yes, I do believe that I can apply
Casey and Akron and the other decisions of the U.S. Supreme
Court, I believe faithfully.
Senator Cantwell. Thank you.
Thank you, Madam Chairman.
Senator Feinstein. Justice Owen, believe it or not, this is
going to come to an end, and you have held up very well, and I
want to say the audience has held up very well. I did not note
anybody going to sleep. And we have two additional judges to
do, so I am going to excuse you and thank you very much.
Justice Owen. Thank you.
Senator Feinstein. And ask the two other judges to please
come forward, and those leaving the room, if you could do so
quietly, we would be very appreciative.
Justice Owen. Thank you, Senator Feinstein, very much.
[The biographical information for Justice Owen follows.]
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Senator Hatch. Madam Chairman, can I put some more material
in the record?
Senator Feinstein. Yes, certainly.
Senator Hatch. Thank you. And others as well.
Senator Feinstein. Yes. The record will remain open for 1
week.
Timothy John Corrigan and Jose Expedicto Martinez, if you
would raise your right hand and affirm the oath when I complete
its reading.
Do you swear that the testimony that you are about to give
before the Committee will be the truth, the whole truth and
nothing but the truth, so help you God?
Judge Corrigan. I do.
Mr. Martinez. I do.
Senator Feinstein. Please have a seat. Let me begin by
apologizing to you for the long delay. And I hope you do not
mind the fact that you are last, but if we could have a brief
statement from each one of you, I should tell you that you are
noncontroversial, which means this should go very quickly. So
why do we not hear from you Judge Corrigan?
STATEMENT OF TIMOTHY J. CORRIGAN, OF FLORIDA, NOMINEE TO BE
DISTRICT JUDGE FOR THE MIDDLE DISTRICT OF FLORIDA
Judge Corrigan. Thank you, Madam Chair. I do not have an
opening statement. I will be happy to respond to questions.
If it would be appropriate for me to introduce the people
with me today, I would like to do that.
Senator Feinstein. It certainly would.
Judge Corrigan. I have with me the Honorable Elizabeth
Kovachevich, who is the Chief Judge of the United States
District Court for the Middle District of Florida. My wife
Nancy Corrigan is with me. I am proud that my sons, Brian and
Kevin Corrigan, are with me here today; my sister Mary Pat
Corrigan. And then my law clerk, Susanne Weisman, and my former
clerk Frances McLaughlin-Keegan are here today.
And thank you, Madam Chair.
Senator Feinstein. Thank you very much, and I apologize to
them for having to wait so long, but in a way you are lucky.
[Laughter.]
Senator Feinstein. Mr. Martinez, might we hear from you?
STATMENT OF JOSE E. MARTINEZ, OF FLORIDA, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF FLORIDA
Mr. Martinez. Yes, Senator. I have no opening statement,
but I would also like to introduce my wife, Mary Anne Martinez
is here; my daughter Anne-Marie Martinez, my other daughter Jan
Vair and her husband Jonathan Vair were here earlier, but they
had to go catch a plane. And my granddaughter, Elizabeth Ann,
was here also, but she had more important things to do; she had
to take a nap. So they left, and they are on the way to the
airport.
I also have present here today my daughter's mother-in-law,
Betty Vair, and my friends, Jim Oliff and Rich Richards. And I
think that is all. Everybody else has left.
Senator Feinstein. Thank you. Mr. Martinez, since you are
speaking at the moment, why do I not begin with you. You have
worked as a general litigator in private practice for more than
30 years, and I am sure that your litigation experience will
serve you well if you are confirmed as a District Court Judge.
Please tell the Committee what you think will be the most
challenging aspect of making the transition from being a
litigator to being a Federal District Court Judge if confirmed?
Mr. Martinez. Well, I think the most difficult thing would
be the case management aspect of it because I have no
experience doing that, but I fully intend to find out who in
the Southern District is the best at doing that, go to them,
freely pick their brain, and try to get as much information as
I can, try to get whatever system works the best for them and
utilize it until I can gain enough experience to modify it in a
way that makes sense for me.
Senator Feinstein. Now, you have had general litigation
practice, as I said, for 30 years, and you have specialized in
product liability litigation.
Mr. Martinez. Yes, ma'am.
Senator Feinstein. Given your experience advising and
defending corporations in product liability suits, what are
your views on tort reform efforts, for example, efforts to cap
non-economic and punitive damages, or to limit the civil and
criminal liability of certain groups such as State Governments?
Mr. Martinez. When I was representing those particular
companies, I was totally in favor of all of those things. But I
do understand both sides of the issue, and I think I have an
open mind as to the viability of some of those issues. I could
be an advocate for either side, but I believe that I am smart
enough to understand that there are both sides to an issue, and
I can take either side equally well, and I think that I will do
the right thing and the fair thing.
I have no particular opinion because I have never actually
been involved in either presenting or pushing any of the
reforms. I was never at that level.
Senator Feinstein. Do you believe there is a constitutional
right to privacy?
Mr. Martinez. I think that it is well established in the
United States that there is a constitutional right to privacy.
Senator Feinstein. Thank you.
Judge Corrigan, you have written several articles
concerning court ordered sanctions against lawyers and parties
that pursue frivolous claims and argument. Please share your
view on such sanctions, and explain how you would determine
whether to impose sanctions in a particular case if confirmed?
Judge Corrigan. Well, if I was fortunate enough to be
confirmed, Madam Chair, I have, as a Magistrate Judge now for
the last 5-\1/2\ years, had to deal with this issue of
sanctions, and I do think that sanctions have a place. However,
I think they are not certainly the first resort of the court.
The court needs to consider everyone's claim on its merit, but
in a given case, if sanctions are required, I think it needs to
be done on a sliding scale depending upon the severity of the
conduct and how repetitious the conduct is.
Senator Feinstein. Thank you. Now, you have been nominated
to fill a seat that has been vacant since its creation nearly 3
years ago. It has been designated a judicial emergency vacancy,
and it has been pending for 950 days. If confirmed, what steps
will you take to handle the anticipated backlog of cases that
you are obviously going to face, and to promptly address those
cases that come before you? In other words, how are you going
to handle this large docket?
Judge Corrigan. Well, Madam Chair, fortunately, as a
Magistrate Judge in the same district, I have a intimate
familiarity with the caseload. I have been handling my own
caseload now as a magistrate judge, and so I am familiar with
the caseload. And I do--as a District Judge, of course, I would
have more primary responsibility for case management, and I
have given that some thought, and I have some ideas in terms of
early case management and other devices that I think would be
helpful to me in addressing the caseload, but I do feel
comfortable in that because it is the same court that I am
currently working with at this time.
Senator Feinstein. Thank you.
Mr. Martinez, how strongly should judges bind themselves to
the doctrine of stare decisis, and does the commitment to stare
decisis vary depending on the court?
Mr. Martinez. Well, depending on the level of the court. I
believe that a trial judge has total reliance upon stare
decisis. We do not make the appellate decisions that we are
bound by. We follow those appellate decisions, and
consequently, it is total in the case of a trial judge.
Senator Feinstein. Would you like to comment on that
question, Mr. Corrigan?
Judge Corrigan. Yes, Madam Chair. I agree, and again, as a
magistrate judge, I am every day applying binding precedent of
both the Supreme Court and the Eleventh Circuit of Appeals,
which is where I happen to come from, and so I am very
accustomed to respecting the superior courts in my
jurisdiction, and I think that is a vital--it is vital to our
rule of law that that be--that stare decisis be followed.
Senator Feinstein. Now I am going to ask you both the same
question. In the past few years the Supreme Court has struck
down a number of Federal statutes, most notably several
designed to protect the civil rights and prerogatives of our
more vulnerable citizens. And they struck them down as beyond
Congress's power under Section 5 of the 14th Amendment. The
Supreme Court has also struck down a statute as being outside
the authority granted to Congress by the Commerce Clause. These
cases have been described as creating new power for State
Governments as Federal authority is being diminished.
At the same time, the Court has issued several decisions,
most notably in the environmental arena, granting States
significant new authority over the use of land and water
despite longstanding Federal regulatory protection of the
environment.
Taken individually, these cases have raised concerns about
the limitations imposed on congressional authority. Taken
collectively, they appear to reflect a new federalism crafted
by the Supreme Court that threatens to alter fundamentally the
structure of our Government.
What is your view of these developments?
Judge Corrigan. Madam Chair, of course, as a trial judge,
it would be my duty to follow the binding decisions of the U.S.
Supreme Court, and while I recognize that there are those in
Congress who differ with those decisions, it would be my duty
and responsibility to follow them until and unless they were
changed. And so I have no particular view apart from my duty to
apply binding Supreme Court precedent.
Mr. Martinez. I am only generally familiar with this area
of the law because it is not something that comes up on a
general basis when you're doing product liability defense, but
I am familiar enough with it to obviously agree with Judge
Corrigan. We have the responsibility of following the law as it
is presented to us. We understand that Acts of Congress are
presumed to be constitutional. If Congress wishes to change
that, it is your prerogative, but at the present time we would
have to follow whatever the law is as it is presented to us.
Senator Feinstein. This is going to be a very short
hearing. I want to thank you for putting up with what has been
a very long day, and your reward is that I am going to adjourn
the hearing.
And I thank your families and your friends for being here,
and you as well.
Judge Corrigan. Thank you, Madam Chair.
Mr. Martinez. Thank you, Madam Chair.
[The biographical information of Judge Corrigan and Mr.
Martinez follow.]
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Senator Feinstein. Thank you very much, and this hearing is
adjourned.
[Whereupon, at 4:56 p.m., the committee was adjourned.]
[Question and answers and submissions for the record
follows.]
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